\ 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


/ 


SCHOOL  OF  LAW 
LIBRARY 


A  DIGEST 

of  the 


Law  of  Evidence 

By 

SIR   JAMES   FITZ  JAMES  STEPHEN,   K.  C.  S.   I. 

WITH  ADDITIONAL  TEXT,  NOTES  AND  IL- 
LUSTRATIONS APPLICABLE    IN    THE 
WESTERN  STATES. 

and   with 

DIGEST    PARAGRAPHS    FROM    ALL    IMPORTANT    DE- 
CISIONS ON  THE  LAW  OF  EVIDENCE 


Arizona,    Arkansas,    California,    Colorado,    Idaho,    Kansas, 

Montana,    Nebraska,    Nevada,    New    Mexico,    North 

Dakota,   Oklahoma,    Oregon,  South     Dakota, 

Texas,  Utah,  Washington  and  Wyoming. 


By 
GEORGE   S.    BERRY,    M.A.,    LL.B- 


Denver,  Colorado: 

The  W.  H.  Courtright  Publishing  Company 

1918 


T 


Copyright,   1918, 

By 

The   W.    H.    Courtright    Publishing   Company. 


PUBLISHER'S  NOTE. 


Complying  with  the  request  of  the  Bench  and  Bar  of  the 
Western  States,  we  secured  the  services  of  the  well  known 
Law  Editor,  George  S.  Berry,  of  the  Denver  Bar,  to  edit 
a  new  edition  of  this  foundational  treatise  on  the  most 
important  branch  of  American  Law. 

After  checking  up  the  Decisions  we  found  it  impossible 
to  carry  out  our  original  plan  without  extending  the  work 
into  several  volumes,  therefore  we  decided  to  have  the 
work  prepared  especially  for  the  Western  States  of  the 
Union,  except  in  rare  instances  where  there  were  few  or 
no  decisions  from  Western  States. 

In  order  that  the  work  would  be  serviceable  for  ready 
reference  in  the  trial  of  cases;  and  to  expedite  the  trac- 
ing of  decisions  in  the  office  it  was  found  necessary  to 
incorporate  a  complete  digest  of  the  exact  point  decided. 
This  gives  to  the  busy  practitioner  all  of  the  important 
decisions  from  his  own  and  adjoining  States,  in  addition 
to  the  recognized  rules,  with  applications  and  illustrations. 

The  text  was  all  prepared  by  Mr.  Berry,  assisted  by  able 
Law  Editors.  Every  line  receiving  the  attention  of  Mr. 
Berry  before  being  assigned  to  its  place  in  the  treatise. 
Over  two  years  of  Mr.  Berry's  exclusive  time  was  devoted 
to  the  preparation  of  the  text. 

Trusting  that  the  work  will  lessen  and  lighten  the  labors 
of  the  profession,  we  hereby  submit  the  within  to  your 
exacting  consideration. 

THE  PUBLISHER. 

Denver,   January,   1918. 


TABLE  OF  CONTENTS. 


PART    I. 
RELEVANCY. 

CHAPTER    I.      PRELIMINARY. 

Art.      1.      Definition    of    Terms 1 

CHAPTER   II.      OF  FACTS   IN   ISSUE  AND   RELEVANCY 
TO  THE   ISSUE. 
Art.      2.     Facts  in  issue  and  facts  relevant  to  the  issue 

may   be    proved 21 

Art.      3.      Relevancy  of  Facts  forming  part  of  the  same 

transaction    as    Facts    in    issue 29 

Art.      4.     Acts   of   Conspirators    41 

Art.      f..      Title      51 

Art.      6.      Customs     54 

Art.      7       .Motive,      Preparation,      Subsequent     Conduct, 

Explanatory  Statements,  etc 57 

Art.      8.     Statements   Accompanying   Acts,    Complaints, 

Statements  in  Presence  of  a  Person 80 

Art.      9.      Facts  necessary  to  explain  or  introduce  Rele- 
vant  Facts    102 

CHAPTER  III.  OCCURRENCES  SIMILAR  TO  BUT  UN- 
CONNECTED WITH  THE  FACTS  IN  ISSUE,  IR- 
RELEVANT   EXCEPT    IN   CERTAIN   CASES. 

Art.    10.     Similar    but    unconnected    Facts 115 

Ait.    11.     Acts   Showing    Intention,    Good   Faith,   etc. ...137 

Art.    12.      Facts   Showing   System    147 

Art.    13.     Existence     of     Course     of      Business      When 

Deemed    to    be    Relevant 154 

CHAPTER    IV.      HEARSAY    IRRELEVANT    EXCEPT    IN 
CERTAIN    CASES. 
Art.    14.      Hearsay     and     the     Contents    of    Documents 

Irrelevant     158 

SECTION   I.      HEARSAY,    WHEN   RELEVANT. 

Art.    15.      Admissions     Defined     168 

Art.    16.      Who     May     Make    Admissions    on     Behalf    of 

Others,    and    when 178 

Ait     17.     Admissions    by    Agents    and    Persons    Jointly 

Interested   with   Parties    .190 

Ait.    ix.     Admissions  by  Strangers    205 

Art.    19.     Admission   by  Person  Referred  to  by  Party.. 206 

Art.    20.      Admissions   Made   Without   Prejudice 207 

Art.    21.      Confessions    Defined    209 

Art.    22.      Confession    Caused    by    Inducement,    Threat, 
or    Promise,    When    Irrelevant    in    Criminal 

Proceeding    218 

Art.  23.     Confessions  Made   Upon  oath.   Etc 228 

Ait.    l'l.      Confession  .Made  Under  a  Promise  of  Secrecv.231 
Art.    25.      Statements      by      Deceased      Persons.      When 

Deemed    to    be    Relevant 23;; 

Ait     J»;       Dying    Declaration    as    to    Cause    of    Death... 233 
Art.    27.      Declarations     Made     in     the    Course    of    Busi- 
ness   or    Professional    Duty 245 

Ait.  -*.     Declarations  Against   Interest  161 


TABLE  OF  CONTENTS. 


Art.   29.     Declarations    by    Testators    as    to    Contents 

of   Will    269 

Art.   30.     Declarations     as     to     Public     and     General 

Rights 274 

Art.   31.     Declarations   as    to    Pedigree 282 

Art.   31a.   Statement   of   Mental   Condition    297 

Art.   32.     Evidence  Given   in  Former  Proceeding  When 

Relevant     306 

SECTION  II.      STATEMENTS  IN  BOOKS,  DOCUMENTS  AND 
RECORDS,  WHEN  RELEVANT. 

Art.    33.     Recitals    of    Public    Pacts    in    Statutes    and 

Proclamations     317 

Art.   34.     Relevancy   of   Entry    in    Public   Record    Made 

in  Performance  of  Duty 319 

Art.  35.  Relevancy  of  Statements  in  Works  of  His- 
tory,   Maps,    Charts    and   Plans 338 

Art.   36.     Entries    in    Bankers'    Books 345 

Art.   37.      Bankers    Not    Compellable    to    Produce    Their 

Books     346 

Art.   38.     Judge's  Powers  as  to  Bankers'   Books 346 

Art.   39.     Judgment    347 

Art.   40.     All    Judgments    Conclusive    Proof    of    Their 

Legal    Effect    347 

Art.  41.  Judgments  Conclusive  as  Between  Parties 
and  Privies  of  Facts  Forming  Ground  of 
Judgment    352 

Art.  42.  Statements  in  Judgment  Irrelevant  as  Be- 
tween Strangers,  except  in  Admiralty 
Cases     366 

Art.  43.  Effect  of  Judgment  Not  Pleaded  as  an  Es- 
toppel      368 

Art.  44.  Judgments  Generally  Deemed  to  be  Irrele- 
vant as  Between  Strangers   371 

Art.   45.     Judgments   Conclusive   in   Favor  of   Judge... 383 

Art.    4  6.     Fraud,    Collusion,    or    Want    of    Jurisdiction 

May    Be    Proved    384 

Art.   47.     Foreign    Judgments     390 

CHAPTER  V.      OPINIONS,  WHEN  RELEVANT  AND  WHEN 
NOT. 

Art.   48.     Opinion    Generally    Irrelevant     393 

Art.   49.     Opinions    of    Experts    on    Points    of    Science 

or    Art    411 

Art.   50.     Facts   Bearing   Upon   Opinions   of  Experts.  ..  429 
Art.   51.     Opinion    as    to    Handwriting,    When    Deemed 

to   be   Relevant    433 

Art.   52.     Comparison   of   Handwritings    435 

Art.   53.     Opinion   as   to   Existence   of   Marriage,    When 

Relevant    439 

Art.   54.     Grounds    of    Opinion,    When    Deemed    to    be 

Relevant    442 

CHAPTER    VI.      CHARACTER,    WHEN    DEEMED    TO    BE 
RELEVANT    AND    WHEN    NOT. 

Art.   55.     Character    Generally    Irrelevant 446 

Art.   56.     Evidence    of    Character    in    Criminal    Cases..  452 
Art.   57.     Character  as   Affecting  Damages    468 


TABLE  OF  CONTENTS.  xiii 

PART   II. 

ON   PROOF. 

CHAPTER   VII.     FACTS    PROVED   OTHERWISE   THAN    BY 
EVIDENCE— JUDICIAL    NOTICE. 

Art.   58.     Of    What    Pacts    the    Court    Takes    Judicial 

Notice     472 

Art.   59.     As  to  Proof  of  Such   Facts 500 

Art.   60.     Evidence    Need    Not    Be    Given    of    Facts   Ad- 
mitted      502 

CHAPTER    VIII.      OF   ORAL    EVIDENCE. 

Art.   61.     Proof   of   Facts    By   Oral   Evidence 507 

Art.   62.     Oral  Evidence  Must  Be   Direct 507 

CHAPTER  IX.  OF  DOCUMENTARY  EVIDENCE: — PRI- 
MARY AND  SECONDARY,  AND  ATTESTED 
DOCUMENTS- 

Art.   63.     Proof   of   Contents   of    Documents 533 

Art.    64.     Primary   Evidence    541 

Art.   65.     Proof  of  Documents  by  Primary  Evidence.  .543 
Art.   66.     Proof    of    Execution    of    Document    Required 

by   Law   to   be   Attested '. 544 

Art.    67.     Cases  in  Which  Attesting  Witness  Need  Not 

Be    Called 550 

Art.   68.     Proof    When    Attesting    Witness    Denies    the 

Execution    558 

Art.   69.     Proof    of    Document    Not    Required    by    Law 

to    be    Attested    559 

Art.   70.      Secondary   Evidence    561 

Art.   71.     Cases    in    Which    Secondary    Evidence    Relat- 
ing  to    Documents    May    be   Given 562 

Art.   72.     Rules    as    to    Notice    to    Produce 584 

CHAPTER  X.   PROOF  OF  PUBLIC  DOCUMENTS. 

Art.   73.     Proof  of  Public  Documents 591 

Art.   74.     Production   of    Document    Itself 594 

Art.   75.     Examined   Copies    597 

Art.    76.     General  Federal  or  State  Records 600 

Art.   77.     Exemplifications     602 

Art.   78.     Copies    Equivalent    to    Exemplifications 604 

Art.    79.     Certified    Copies    805 

Art.  80.     Judicial    Records    and    Public    Documents    of 

Other    States    616 

Art.   81.     Officially   Printed  Copies    621 

Art.   82.      Legislative  Acts  of  States  and  Territories.  ..  623 
Art.   83.     State      Papers,      Proclamations,      Legislative 

Journals   and    Public    Documents 623 

Art.   84.      Foreign  Laws,  Acts  of  State,  and  Judgments. 624 

CHAPTER  XI.     PRESUMPTIONS  AS  TO   DOCUMENTS. 

Art.  85.     Presumption  as  to  Date  of  Document 626 

Art.   86.      Presumption  as  to  Stamp  of  a  Document ....  628 
Art.   87.      Presumption     as     to     Seal     and     Delivery     of 

Deeds     628 

Art.  88.     Presumptions  as  to  Documents  Thirty  Years 

Old 630 

Ait.   89.     Presumption    as    to    Alterations     633 


TABLE   OF   CONTENTS. 


CHAPTER  XII.  OF  THE  EXCLUSION  OF  ORAL  BY 
DOCUMENTARY  EVIDENCE,  AND  OF  THE 
MODIFICATION  AND  INTERPRETATION  OF 
DOCUMENTARY  BY  ORAL  EVIDENCE. 

Art.   90.     Evidence  of  Terms   of  Contracts,   Grants,   and 
Other    Dispositions    of    Property    Required 

to   a    Documentary    Form    637 

Art.   91.     What  Evidence   May  be  Given   for   the   Inter- 
pretation   of    Documents    672 

Art.   92.     Cases    to   Which   Articles    90    and    91    Do    Not 

Apply     692 

PART   III. 

PRODUCTION  AND  EFFECT  OF  EVIDENCE. 

CHAPTER    XIII.      BURDEN    OF    PROOF. 

Art.   93.     He    Who    Affirms    Must    Prove 696 

Art.   94.     Presumption    of    Innocence     704 

Art.   95.     On  Whom  the  General  Burden  of  Proof  Lies.  708 

Art.   96.      Burden   of   Proof  as   to   Particular  Fact 713 

Art.   97.     Burden    of    Proving    Fact    to    be    Proved    to 

Make    Evidence    Admissible    716 

Art.   97a.   Burden    of    Proof    When    Parties    Stand    in    a 

Fiduciary    Relation    718 

CHAPTER  XIV.      ON  PRESUMPTIONS  AND  ESTOPPELS. 

Art.     98.     Presumption  of  Legitimacy    721 

Art.      99.     Presumption    of    Death    from    Seven    Years' 

Absence     ■ 725 

Art.   100.     Presumption    of    Lost    Grant 731 

Art.   101.     Presumption    of    Regularity    and    of    Deeds 

to    Complete    Title    733 

Art.   102.     Estoppel    by   Conduct    738 

Art.   103.     Estoppel  of  Tenant  and  Licensee   756 

Art.   104.     Estoppel  of  Acceptor  of  Bill  of  Exchange.  .  765 
Art.   105.     Estoppel  of  Bailee,  Agent  and   Licensee.  ...  766 

CHAPTER  XV.      OF  THE  COMPETENCY  OF  WITNESSES. 

Art.   106.     Who   May   Testify    773 

Art.   107.     What  Witnesses  are   Incompetent    774 

Art.   108.     Competency    in    Criminal    Cases    784 

Art.   109.     Competency    of    Husband    and    Wife 789 

Art.   110.     Communications  During  Marriage 795 

Art.   111.     Judges  and  Advocates  Privileged  as  to  Cer- 
tain    Questions     799 

Art.   112.     Evidence   as    to    Affairs   of   State 802 

Art.   113.      Information  as   to  Commission   of  Offenses.  803 

Art.   114.     Competency    of    Jurors 805 

Art.   115.     Professional    Communications     807 

Art.   116.     Confidential     Communications     With     Legal 

Advisers     815 

Art.    117.     Clergymen  and  Medical  Men    815 

Art.   118.     Production    of    Title-Deeds    of    Witness    Not 

a   Party    821 

Art.   119.     Production    of    Documents    Which    Another 
Person,    Having   Possession,   Could   Refuse 

to    Produce     822 

Art.   120.     Witness   Not   to    be   Compelled    to    Incrimin- 
ate   Himself 823 

Art.   121.     Corroboration,  When   Required    834 

Art.   122.      Number   of   Witnesses    840 


TABLE    OF   CONTENTS.  XV 


CHAPTER    XVI.      OF    TAKING    ORAL    EVIDENCE.    AND 
OF  THE  EXAMINATION  OF  WITNESSES. 
Art.    123.     Evidence    to   be    Upon   Oath,   Except    in    Cer- 
tain   Cases    845 

Art.   124.     Form    of    Oaths;    By    Whom    They    May    be 

Administered      847 

Art.    125.      How   Oral   Evidence    May   Be   Taken 849 

Art.   126.      Examination     in    Chief,    Cross-Examination, 

and    Re-Examination     852 

Art.    127.     To    What    Matters    Cross-Examination    and 

Re-Examination    Must    be    Directed 857 

Art.    128.      Leading    Questions    865 

Art.    129.     Questions  Lawful  in  Cross-Examination  ....  869 
Art.    129a.   Judge's   Discretion  as  to  Cross-Examination 

to  Credit    877 

Art    130.      Exclusion    of    Evidence    to    Contradict    An- 
swers to  Questions  Testing  Veracity    878 

Art.    131.      Statements    Inconsistent    with    Present    Tes- 
timony   May    be    Proved 880 

Art.    132.     Cross-Examination    as     to     Previous     State- 
ments in  Writing   889 

Art.    133.      Impeaching:    Credit    of    Witness 892 

Art.    131.      Offenses    Against    Women 917 

Art.    135.      What    Matters   May  be  Proved    in   Reference 
to      Declarations      Relevant      Under      Arts. 

25-34      922 

Art.    136       Refreshing    Memory    923 

Art.   137.     Right  of  Adverse  Party  as  to  Writing  Used 

to   Refresh   Memory    936 

Art.    138.     Giving,    as    Evidence,    Document    Called    for 

and   Produced   on   Notice    937 

Art.    139.      Using',    as    Evidence,    a    Document,    Produc- 
tion of  Which  Was  Refused  on  Notice.  .  .  .938 

CHAPTER   XVII.      OF   DEPOSITIONS. 

Art.    140.      Depositions    Before     Magistrates 939 

Art.    141.      Depositions  Under  30  &  31  Vict.  C.  35,  s.  6.. 947 
Art.   142.      Depositions   Under  Merchants  Shipping  Act, 

1854     949 

CHAPTER      XVIII.      OF      IMPROPER     ADMISSION    AND 
REJECTION    OF    EVIDENCE. 
Ait.    143     953 

INDEX     961 


TABLE  OF  ABBREVIATIONS. 


A     (t    K Adolphus   &   Ellis'    Reports 

App.   Gas Appeal    Cases 

Ariz Arizona    Supreme    Court    Reports 

Ark Arkansas  Supreme  Court  Reports 

Atk Atkyn's     Reports 

r    <fc   A Barnewall   &    Alderson's    Reports 

B.  &  Ad Barnewall   &  Adolphus' s  Reports 

B.    <fe    B Broderip    <<fc    Bingham's    Reports 

B.    &    C Barnewall    and    Cresswell's    Reports 

Keav Beavan's    Reports 

Bell,  C.  C Bell's  Crown   Cases 

Best    Best    on    Evidence 

B.  &   S Best  &   Smith's   Reports 

Bing Bingham's    Reports 

Bing-    N-    G Bingham's    New    Cases 

B.  N.   P Buller's    Nisi    Prius 

Br.   P.    C Brown's    Parliamentary    Cases 

Br.  N.  P Brown's  Nisi   Prius 

Oal California    Supreme   Court   Reports 

f'al.   App California  Appeals   Reports 

( "am Campbell's    Reports 

i'ar.   &  Kir Carrington   &   Kirwan's   Reports 

Colo Colorado    Supreme    Court    Reports 

<  'olo.    App Colorado   Appeals    Reports 

( '.   B Common   Bench   Reports 

C.  B.    (N.  S.) Common  Bench   Reports   (New  Series) 

<"h.    D Chancery    Division 

i'o.x,  Cr.  Ca Cox's  Crown  Cases 

C.  &  F Clark  &   Finnelly's  Reports 

C.   M.  &   R Crompton,   Meeson,  &  Roscoe's   Reports 

C.  &  Marsh Carrington  &   Marshman's   Reports 

( 'owp Cowper's    Reports 

i '.  <t-    P Carrington  &  Paine's  Reports 

C.    P.    r>iv Common   Pleas  Division 

c.   &  J Crompton   &   Jervis's   Reports 

[>.   &    B Dearsley   &   Bell's   Crown    Cases 

[  »ear„   or   Dearsley   &   P Dearsley's   Crown   Cases 

De  '  '.e.  &  J De  Gex  &  Jones's  Reports 

De   ' ;.    M.  &   G De  Gex.    Macnaughten,   &  Gordon 

I  ip  < ;.  &  S De  Gex  &  Smale's  Reports 

Den.   C.   C Denison's   Crown   Cases 

Doug Douglas's    Reports 

I  mi    &  War Driiry   &   Warren's   Reports 

Ka East's    Reports 

Bast,    P.   <- East's  Pleas  of  the  Crown 

E.  &   B Kllis  &   Blackburn's   Reports 

I"s]> Espinasse's    Reports 

EX Exchequer    Reports 

Kx.    I>iv Exchequer    I  >i vision 

F Federal    Reporter 

F.  &    F Foster   &    Finlason's    Reports 

'",eii.     View    Cr.     Daw 

Stephen's    General     View     of    the    Criminal     Law 

Greenl.    Ev Greenleaf    on    Evid< 

Hale,   P.   C Hale's   Pleas   of   the   Crown 

Hare Hare's     Reports 

H.  Bl H.   Blackstone's   Reports 

H.  &  C Hurlston  &  ("oltman's   Reports 

H.  &  N Hurlston  &   Norman's   Reports 

H.  L..   C House   of   Lord's   Cases 


TABLE  OF  ABBREVIATIONS. 


Ida Idaho    Supreme    Court    Reports 

Ir.  Cir.   Rep Irish  Circuit  Reports 

Ir.   Rep.   Eq Irish   Equity   Reports 

Jac.  &  Wal Jacob  &  Walker's  Reports 

Jebb,  C.  C Jebb's  Criminal  Cases    (Ireland) 

Kan Kansas   Supreme  Court   Reports 

Keen Keen's    Reports,    Chancery 

D~  Ed Law  Edition,   U.  S.   Supreme  Court  Reports 

Tj.  &  C Leigh  &  Cave's  Crown  Cases 

Leach Leach's    Crown    Cases 

L.  J.  Ch Law  Journal,  Chancery 

L.   J.   Eq Law    Journal,    Equity 

L.  J.  M.  C Law  Journal,   Magistrate's  Cases 

L.  J.  N.  S Law  Journal,  New  Series 

L.  R.  Ch.  Ap Law  Reports,  Chancery  Appeals 

L.   R.  C.  C Law  Reports,  Crown  Cases   Reserved 

L.  R.  C.  P Law  Reports,  Common  Pleas 

L.   R.  Ex Law   Reports,   Exchequer 

L.   R.  Q.  B Law  Reports,  Queen's  Bench 

Madd Maddock's    Reports 

Man.  &  R Manning  &   Ryland's   Reports 

McNally  Ev McNally's  Rules  of  Evidence 

Mont. Montana    Supreme   Court    Reports 

Moo.    C.    C Moody's    Crown    Cases 

M.  &  G Manning  &  Granger's  Reports 

M.  &   K Mylne  &  Keen's   Reports 

M.  &  M Moody  &  Malkin's  Reports 

Moo.  P.  C Moore's  Privy  Council   Reports 

Mo.  &   Ro Moody  &   Robinson's   Reports 

M.   &  S Maule  &   Selwyn's   Reports 

M.  &  W Meeson  &  Welsby's   Reports 

Neb Nebraska   Supreme   Court   Reports 

Nev Nevada   Supreme  Court   Reports 

N.   D North   Dakota   Supreme  Court  Reports 

N.   M New  Mexico  Supreme  Court   Reports 

N.    W Northwestern    Reporter 

Pea.    R Peake's    Reports 

Phill Phillips'    Reports 

Phi.  Ev Phillips  on   Evidence,   10th  Ed. 

Price    Price's  Reports 

P.   D Probate    Division 

P Pacific    Reporter 

Q-   B Queen's  Bench   Reports 

Q.  B.   D Queen's  Bench  Division 

Or Oregon    Supreme   Court   Reports 

Okl Oklahoma   Supreme   Court   Reports 

Okl.    Cr Oklahoma   Criminal   Reports 

R.  N.  P Roscoe's  Nisi  Prius,   13th  Ed. 

R.  &  R Russell  &  Ryan's  Crown  Cases 

Russ.   on  Crimes Russell   on  Crimes,    4th   Ed. 

Selw.    N.    P Selwyn's    Nisi    Prius 

Simon    Simon's   Reports 

Simon    (N.   S.) Simon's   Reports,   New   Series 

Sim.   &    Stu Simon    &   Stuart's    Reports 

Smith,  L.  C Smith's   Leading  Cases,   7th  Ed. 

Star Starkie's    Reports 

Starkie Starkie  on  Evidence,   4th  Ed. 

S.   &  T Swabey  &   Tristram's   Reports 

S.   T.,  or  St.   Trl State  Trials 

Story's  Eq.  Jur Story  on  Equity  Jurisprudence 

Swab.   Ad Swabey's   Admiralty   Reports 

S.  D South  Dakota  Supreme  Court  Reports 

S.    W , Southwestern    Reporter 

T.    R Term    Reports 

T.    E Taylor    on    Evidence,    6th    Ed. 

Tau Taunton's    Reports 


TABLE  OF  ABBREVIATIONS.  xix 


Tex Texas   Supreme   Court   Reports 

Tex.   App Texas  Appeals  Reports    (Criminal) 

Tex.   Cr.   R Texas  Criminal   Reports 

Tex.    Civ.    App Texas    Civil    Appeals    Reports 

U.    S United   States   Supreme   Court    Reports 

Utah Utah  Supreme  Court  Reports 

Ve Vesey's   Reports 

Wash Washington    Supreme  Court    Reports 

Wig.   Ext.   Ev Wigram   on   Extrinsic  Evidence 

Wills'  Circ.  Ev Wills  on  Circumstantial  Evidence 

Wigmore's     Wigmore's    Evidence 

Wyo Wyoming    Supreme    Court    Reports 


INTRODUCTION. 


In  the  years  1870-1871  I  drew  what  afterwards  became  the 
Indian  Evidence  Act  (Act  1  of  1872).  This  Act  began  by  re- 
pealing (with  a  few  exceptions)  the  whole  of  the  Law  or  Evi- 
dence then  in  force  in  India,  and  proceeded  to  re-enact  it  in 
the  form  of  a  code  of  167  sections,  which  has  been  in  opera- 
tion in  India  since  September,  1872.  I  am  informed  that  it  is 
generally  understood,  and  has  required  little  judicial  com- 
mentary or  exposition. 

In  the  autumn  of  1872,  Lord  Coleridge  (then  Attorney-Gen- 
eral) employed  me  to  draw  a  similar  code  for  England.  I  did 
so  in  the  course  of  the  winter,  and  we  settled  it  in  frequent 
consultations.  It  was  ready  to  be  introduced  early  in  the 
Session  of  1873.  Lord  Coleridge  made  various  attempts  to 
bring  it  forward,  but  he  could  not  succeed  till  the  very  last 
day  of  the  Session.  He  said  a  few  words  on  the  subject  on 
the  5th  August.  1873,  just  before  Parliament  was  prorogued. 
The  Bill  was  thus  never  made  public,  though  I  believe  it  was 
ordered  to  be  printed. 

It  was  drawn  on  the  model  of  the  Indian  Evidence  Act,  and 
contained  a  complete  system  of  law  upon  the  subject  of 
Evidence. 

The  present  work  is  founded  upon  this  Bill,  though  it  dif- 
fers from  it  in  various  respects.  Lord  Coleridge's  Bill  pro- 
posed a  variety  of  amendments  of  the  existing  law.  These 
are  omitted  in  the  present  work,  which  is  intended  to  repre- 
sent the  existing  law  exactly  as  it  stands.  The  Bill,  of 
course,  was  in  the  ordinary  form  of  an  Act  of  Parliament.  In 
the  book  I  have  allowed  myself  more  freedom  of  expression, 
though  I  have  spared  no  pains  to  make  my  statements  pre- 
cise  and   complete. 

In  December,  1875,  at  the  request  of  the  Council  of  Legal 
Education,  I  undertook  the  duties  of  Professor  of  Common 
Law,  at  the  Inns  of  Court,  and  I  chose  the  Law  of  Evidence 
for  the  subject  of  my  first  course  of  lectures.  It  appeared  to 
me  that  the  draft  Bill  which  1  had  prepared  for  Lord  Cole- 
ridge supplied  the  materials  for  such  a  statement  of  the  law 
as  would  enable  students  to  obtain  a  precise  and  systematic 
acquaintance  with  it  in  a  moderate  space  of  time,  and  with- 
out a  degree  of  labor  disproportionate  to  its  importance  in 
relation  to  other  branches  of  the  law.  No  such  work,  so  fai- 
ns I  know,  exists;  for  all  the  existing  books  on  the  Law  of 
Evidence  are  written  on  the  usual  model  of  English  law- 
books, which,  as  a  general  rule,  aim  at  being  collections  more 
or  less  complete  of  all  the  authorities  upon  a  given  subject. 
to  which  a  judge  would  listen  in  an  argument  in  court.  Such 
works  often  become,  under  the  hands  of  successive  editors, 
tlie  repositories  of  an  extraordinary  amount  of  research,  but 
ili'-y  seem  to  me  to  have  the  effect  of  making  the  attainment 
by  direct  study  of  a  real  knowledge  of  the  law,  or  of  any 
branch  of  it  as  a  whole,  almost  Impossible.  The  enormous 
mass  of  detail  -and  illustration  which  they  contain,  and  the 
habit  into  which  their  writers  naturally  fall,  of  introducing 
into  them  everything  which  has  any  sort  of  connection,  how- 
ever remote,  with  the  main  subject,  make  these  books  us* 
for  purposes  of  study,  though  they  may  increase  their  utility 
as  works  of  reference.  The  fifth  edition  of  Mr.  Taylor's  work 
on  Evidence  contains  1797  royal  8vo  pages.  To  judge  from 
the  table  of  cases,  it  must  refer  to  about  9000  judicial  deci- 
sions, and  it  cites  nearly  750  Acts  of  Parliament.  The  "Ros- 
coe's  Digest  of  the   Law  of  Evidence  on   the  Trial   of  Actions 


INTRODUCTION. 


at  Nisi  Prius,"  contains  1556  closely  printed  pages.  The 
table  of  cases  cited  consists  of  77  pages,  one  of  which  con- 
tains the  names  of  152  cases,  which  would  give  a  total  of 
11,704  cases  referred  to.  There  is,  besides,  a  list  of  references 
to  statutes  which  fills  21  pages  more.  "Best's  Principles  of 
the  Law  of  Evidence,"  which  disclaims  the  intention  of  add- 
ing to  the  number  of  practical  works  on  the  subject,  and  is 
said  to  be  intended  to  examine  the  principles  on  which  the 
rules  of  evidence  are  founded,  contains  908  pages,  and  refers 
to  about  1400  cases.  When  we  remember  that  the  Law  of 
Evidence  forms  only  one  branch  of  the  Law  of  Procedure, 
and  that  the  Substantive  Law  which  regulates  rights  and 
duties  ought  to  be  treated  independently  of  it,  it  becomes 
obvious  that  if  a  lawyer  is  to  have  anything  better  than  a 
familiarity  with  indexes,  he  must  gain  his  knowledge  in  some 
other  way  than  from  existing  books.  No  doubt  such  knowl- 
edge is  to  be  gained.  Experience  gives  by  degrees,  in  favor- 
able cases,  a  comprehensive  acquaintance  with  the  principles 
of  the  law  with  which  a  practitioner  is  conversant.  He  gets 
to  see  that  it  is  shorter  and  simpler  than  it  looks,  and  to 
understand  that  the  innumerable  cases  which  at  first  sight 
appear  to  constitute  the  law,  are  really  no  more  than  illus- 
trations of  a  comparatively  small  number  of  princples;  but 
those  who  have  gained  knowledge  of  this  kind  have  usually 
no  opportunity  to  impart  it  to  others.  Moreover,  they  acquire 
it  very  slowly,  and  with  needless  labor  themselves,  and 
though  knowledge  so  acquired  is  often  specially  vivid  and 
well  remembered,  it  is  often  fragmentary,  and  the  posses- 
sion of  it  not  unfrequently  renders  those  who  have  it  scep- 
tical as  to  the  possibility,  and  even  as  to  the  expediency,  of 
producing   anything   more   systematic   and   complete. 

The  circumstances  already  mentioned  led  me  to  put  into 
a  systematic  form  such  knowledge  of  the  subject  as  I  had 
acquired.  This  work  is  the  result.  The  labor  bestowed 
upon  it  has,   I   may   say,   been   in  an  inverse  ratio   to   its   size. 

My  object  in  it  has  been  to  separate  the  subject  of  evi- 
dence from  other  branches  of  the  law  with  which  it  has 
commonly  been  mixed  up;  to  reduce  it  into  a  compact,  sys- 
tematic form,  distributed  according  to  the  natural  division 
of  the  subject-matter;  and  to  compress  into  precise,  definite 
rules,  illustrated,  when  necessary,  by  examples,  such  cases 
and  statutes  as  properly  relate  to  the  subject-matter  so 
limited  and  arranged.  I  have  attempted,  in  short,  to  make  a 
digest  of  the  law,  which,  if  it  were  thought  desirable,  might 
be  used  in  the  preparation  of  a  code,  and  which,  at  all 
events,  will,  I  hope,  be  useful,  not  only  to  professional  stu- 
dents, but  to  everv  one  who  takes  an  intelligent  interest  in 
a  part  of  the  law  of  his  country  bearing  directly  on  every 
kind  of  investigation  into  questions  of  fact,  as  well  as  on 
every  branch  of  litigation. 

The  Law  of  Evidence  is  composed  of  two  elements,  namely: 
first,  an  enormous  number  of  cases,  almost  all  of  which  have 
been  decided  in  the  course  of  the  last  one  hundred  or  one 
hundred  and  fifty  years,  and  which  have  already  been  col- 
lected and  classified  in  various  ways  by  a  succession  of  text- 
writers,  the  most  recent  of  whom  I  have  already  named; 
secondly,  a  comparatively  small  number  of  Acts  of  Parlia- 
ment which  have  been  passed  in  the  course  of  the  last 
thirty  or  fortv  years,  and  have  effected  a  highly  beneficial 
revolution  in  the  law  as  it  was  when  it  attracted  the  denun- 
ciations of  Bentham.  Writers  on  the  Law  of  Evidence  usually 
refer  to  statutes  by  the  hundred,  but  the  Acts  of  Parliament 
which  really  relate  to  the  subject  are  but  few.  A  detailed 
account  of  this  matter  will  be  found  at  the  end  of  the  vol- 
ume, in  Note  XLIX. 


INTRODUCTION.  xxiii 


The  arrangement  of  the  book  is  the  same  as  that  of  the 
Indian  Evidence  Act,  and  is  based  upon  the  distinction  be- 
tween relevancy  and  proof,  that  is,  between  the  question, 
What  facts  may  be  proved?  and  the  question.  How  must  a 
fact  be  proved  assuming  that  proof  of  it  may  be  given?  The 
neglect  of  this  distinction,  which  is  concealed  by  the  ambig- 
uity of  the  word  evidence  (a  word  which  sometimes  means 
testimony  and  at  other  times  relevancy)  has  thrown  the 
whole  subject  into  confusion,  and  has  made  what  is  really 
plain  enough  appear  almost  incomprehensible. 

In  my  Introduction  to  the  Indian  Evidence  Act  published 
in  1872,  and  in  speeches  made  in  the  Indian  Legislative 
Council.  I  entered  fully  upon  this  matter.  It  will  be  suffi- 
cient here  to  notice  shortly  the  principle  on  which  the  ar- 
rangement of  the  subject  is  based,  and  the  manner  in  which 
the  book  has  been  arranged  in  consequence. 

The  great  bulk  of  the  Law  of  Evidence  consists  of  nega- 
tive rules  declaring  what,  as  the  expression  runs,  is  not 
evidence. 

The  doctrine  that  all  facts  in  issue  and  relevant  to  the 
issue,  and  no  others,  may  be  proved,  is  the  unexpressed 
principle  which  forms  the  center  of  and  gives  unity  to  all 
these  express  negative  rules.  To  me  these  rules  always  ap- 
peared to  form  a  hopeless  mass  of  confusion,  which  might. 
be  remembered  by  a  great  effort,  but  could  not  be  understood 
as  a  whole,  or  reduced  to  system,  until  it  occurred  to  me  to 
ask  the  question.  What  Is  this  evidence  which  you  tell  me 
hearsay  is  not?  The  expression  "hearsay  is  not  evidence" 
seemed  to  assume  that  I  knew  by  the  light  of  nature  what 
evidence  was.  but  I  perceived  at  last  that  that  was  just  what 
I  did  not  know.  I  found  that  I  was  in  the  position  of  a  per- 
son who,  having  never  seen  a  cat,  is  instructed  about  them 
in  this  fashion:  "Lions  are  not  cats  in  our  sense  of  the 
word,  nor  are  tigers  nor  leopards,  though  you  might  be  in- 
clined to  think  they  were."  Show  me  a  cat  to  begin  with,  and 
I  at  once  understand  both  what  is  meant  by  saying  that  a 
lion  is  not  a  cat,  and  why  it  is  possible  to  call  him  one.  Tell 
me  what  evidence  is.  and  I  shall  be  able  to  understand  why 
you  say  that  this  and  that  class  of  facts  are  not  evidence. 
The  question  "What  is  evidence?"  gradually  disclosed  the 
ambiguity  of  the  word.  To  describe  a  matter  of  fact  as  "evi- 
dence" in  the  sense  of  testimony  Is  obviously  nonsense.  No 
one  wants  to  ht-  told  that  hearsay,  whatever  else  it  is,  is  not 
testimony.  What  then  does  the  word  mean?  The  only  pos- 
sible  answer  is:  It  means  that  the  one  fact  either  is  or  else 
is  not  considered  by  the  person  using  the  expression  to  fur- 
nish a  premise  or  part  of  a  premise  from  which  the  existence 
of  the  other  is  a  necessary  or  probable  inference;  in  other 
words,  that  the  one  fact  is  or  Is  not  relevant  to  the  other. 
When  the  inquiry  is  pushed  further,  and  the  nature  of  rele- 
vancy has  to  be  considered  in  itself,  and  apart  from  legal 
rules  about  it.  we  are  led  to  inductive  logic,  which  shows 
thai  judicial  evidence  is  only  one  case  of  the  general  problem 
of  BCience, — namely,  inferring  the  unknown  from  the  known. 
As  far  as  the  logical  theory  of  the  matter  is  concerned,  this 
Is  an  ultimate  answer.  The  logical  theory  was  cleared  up 
by  Mr.  Mill.  Bentham  and  some*  other  writers  had  more 
or  less  discussed  the  connection  of  logic  with  the  rules  of 
evidence.  But  I  am  not  aware  that  it  occurred  to  anv  one 
before    1    published    my    "Introduction    to    the    Indian    Evidence 

•See,  for  example,  that  able  and  Interesting  book  "An 
Essay  on  Circumstantial  Evidence."  )>v  the  late  Mr.  Wills 
father  of  Mr.  Alfred  Wills.  Q.  c.  chief  Baron  Gilbert's  work 
on  t lie  Law  of  Evidence  is  founded  on  Locke's  "Essay,"  much 
««   mv   work   is  founded   on    Mill's    "Logic  " 


INTRODUCTION. 


Act"  to  point  out  in  detail  the  very  close  resemblance  which 
exists  between  Mr.  Mill's  theory  and  the  existing  state  of  the 
law. 

The  law  has  been  worked  out  by  degrees  by  many  genera- 
tions of  judges  who  perceived  more  or  less  distinctly  the 
principle  on  which  it  ought  to  be  founded.  The  rules  estab- 
lished by  them  no  doubt  treat  as  relevant  some  facts  which 
cannot  perhaps  be  said  to  be  so.  More  frequently  they  treat 
as  irrelevant  facts  which  are  really  relevant,  but  exceptions 
excepted,  all  their  rules  are  reducible  to  the  principle  that 
facts  in  issue  or  relevant  to  the  issue,  and  no  others,  may 
be  proved. 

The  following  outline  of  the  contents  of  this  work  will 
show  how  I  have  applied   this   principle   in  arranging  it. 

All  law  may  be  divided  into  Substantive  Law,  by  which 
rights,  duties,  and  liabilities  are  defined,  and  the  Law  of 
Procedure  by  which  the  Substantive  Law  is  applied  to  par- 
ticular cases. 

The  Law  of  Evidence  is  that  part  of  the  Law  of  Proce- 
dure which,  with  a  view  to  ascertain  individual  rights  and 
liabilities   in   particular   cases,   decides: 

I.  What  facts  may,  and  what  may  not  be  proved  in  such 
cases: 

II.  What,  sort  of  evidence  must  be  given  of  a  fact  which 
may   be   proved; 

III.  By  whom  and  in  what  manner  the  evidence  must  be 
produced   by  which   any   fact   is  to   be   proved. 

I.  The  facts  which  may  be  proved  are  facts  in  issue,  or 
facts   relevant   to    the   issue. 

Facts  in  issue  are  those  facts  upon  the  existence  of  which 
the  right  or  liability  to  be  ascertained  in  the  proceeding 
depends. 

Facts  relevant  to  the  issue  are  facts  from  the  existence 
of  which  inferences  as  to  the  existence  of  the  facts  in  issue 
may  be  drawn. 

A  fact  is  relevant  to  another  fact  when  the  existence  of 
the  one  can  be  shown  to  be  the  cause  or  one  of  the  causes, 
or  the  effect  or  one  of  the  effects,  of  the  existence  of  the 
other,  or  when  the  existence  of  the  one,  either  alone  or  to- 
gether with  other  facts,  renders  the  existence  of  the  other 
highly  probable,  or  improbable,  according  to  the  common 
course   of   events. 

Four  classes  of  facts,  which  in  common  life  would  usually 
be  regarded  as  falling  within  this  definition  of  relevancy, 
are  excluded  from  it  by  the  Law  of  Evidence  except  in  cer- 
tain   cases: — 

1.  Facts  similar  to,  but  not  specifically  connected  with, 
each   other.      (Res   inter  alios  actoe.) 

2.  The  fact  that  a  person  not  called  as  a  witness  has  as- 
serted the  existence  of  any  fact.      (Hearsay.) 

3.  The  fact  that  any  person  is  of  opinion  that  a  fact 
exists.      (Opinion.) 

4.  The  fact  that  a  person's  character  is  such  as  to  render 
conduct  imputed  to  him  probable  or  improbable.    (Character.) 

To  each  of  those  four  exclusive  rules  there  are,  however, 
important  exceptions,  which  are  defined  by  the  Law  of  Evi- 
dence. 

II.  As  to  the  manner  in  which  a  fact  in  issue  or  relevant 
fact   must   be   proved. 

Some  facts  need  not  be  proved  at  all,  because  the  Court 
will  take  judicial  notice  of  them,  if  they  are  relevant  to  the 
issue. 

Every  fact  which  requires  proof  must  be  proved  either  by 
oral   or  by   documentary   evidence. 

Every  fact,  except  (speaking  generally)  the  contents  of  a 
document,   must   be   proved   by   oral    evidence.      Oral   evidence 


INTRODUCTION.  xxv 


must  in  every  case  be  direct;  that  is  to  say,  it  must  consist 
of  an  assertion  by  the  person  who  gives  it  that  he  directly 
perceived  the  fact  to  the  existence  of  which  he  testifies. 

Documentary  evidence  is  either  primary  or  secondary.  Pri- 
mary evidence  is  the  document  itself  produced  in  court  for 
inspection. 

Secondary  evidence  varies  according  to  the  nature  of  the 
document.  In  the  case  of  private  documents  a  copy  of  the 
document,  or  an  oral  account  of  its  contents  is  secondary 
evidence.  In  the  case  of  some  public  documents,  examined 
or  certified  copies,  or  exemplifications,  must  or  may  be  pro- 
duced   in    the   absence   of   the    documents    themselves. 

Whenever  any  public  or  private  transaction  has  been  re- 
duced to  a  documentary  form,  the  .document  in  which  it  is 
recorded  becomes  exclusive  evidence  of  that  transaction,  and 
its  contents  cannot,  except  in  certain  cases  expressly  defined, 
be  varied  by  oral  evidence,  though  secondary  evidence  may 
be   given   of   the   contents   of   the   document. 

III.  As  to  the  person  by  whom,  and  the  manner  in  which 
the   proof  of.  a  particular  fact   must  be  made. 

When  a  fact  is  to  be  proved,  evidence  must  be  given  of  it 
by  the  person  upon  whom  the  burden  of  proving  it  is  im- 
posed, either  by  the  nature  of  the  issue  or  by  any  legal  pre- 
sumption, unless  the  fact  is  one  which  the  party  is  estopped 
from  proving  by  his  own  representations,  or  by  his  conduct, 
or  by  his  relation  to  the  opposite  party. 

The  witnesses  by  whom  a  fact  is  to  be  proved  must  be 
competent.  With  very  few  exceptions,  every  one  is  now  a 
competent  witness  in  all  cases.  Competent  witnesses,  how- 
ever, are  not  in  all  cases  compelled  or  even  permitted  to 
testify. 

The  evidence  must  be  given  upon  oath,  or  in  certain  ex- 
cepted cases  without  oath.  The  witnesses  must  be  first  ex- 
amined in  chief,  then  cross-examined,  and  then  re-examined. 
Their  credit  may  be  tested  in  certain  ways,  and  the  answers 
which  they  give  to  questions  affecting  their  credit  may  be 
contradicted   in  certain  cases  and  not  in  others. 

This  brief  statement  will  show  what  1  regard  as  constitut- 
ing the  Law  of  Evidence,  properly  so  called.  My  view  of  it 
excludes  many  things  which  are  often  regarded  as  forming 
part  of  it.   The  principal  subjects  thus  omitted  are  as  follows: 

I  regard  the  question,  What  may  be  proved  under  particular 
issues?  (which  many  writers  treat  as  part  of  the  Law  of 
Evidence)  as  belonging  partly  to  the  subject  of  pleading,  and 
partly  to  each  of  the  different  branches  into  which  the  Sub- 
stantive Law  may  be  divided. 

A  is  indicted  for  murder,  and  pleads  Not  Guilty.  This  plea 
puts  in  issue,  among  other  things,  the  presence  of  any  state 
of  mind  describable  as  malice  aforethought,  and  all  matters 
oi    justification    or    extenuation. 

Starkie  and  Roscoe  treat  these  subjects  at  full  length,  as 
supplying  answers  to  the  question,  What  can  be  proved  under 
;in  issue  of  Not  Guilty  on  an  indictment  for  murder?  Mr. 
Taylor  does  not  go  so  far  as  this;  but  a  great  part  of  his 
book  is  based  upon  a  similar  principle  of  classification.  Thus 
chapters  i.  and  ii.  of  Part  II.  are  rather  a  treatise  on  plead- 
ing than  a  treatise  on  evidence. 

Again,  I  have  dealt  very  shortly  with  the  whole  subject 
of  presumptions.  My  reason  is  that  they  also  appear  to  me 
to  belong  to  different  branches  of  the  Substantive  Law,  and 
to  be  unintelligible,  except  in  connection  with  them.  Take, 
for  instance,  the  presumption  that  every  one  knows  the  law. 
The  real  meaning  of  this  is  that,  speaking  generally,  ignor- 
ance of  the  law  is  not  taken  as  an  excuse  for  breaking  it. 
This  rule  cannot  be  properly  appreciated  if  it  is  treated  as 
a   part  of  the   Law   of  Evidence.      It   belongs   to   the   Criminnl 


xxvi  INTRODUCTION. 


Law.  In  the  same  way  numerous  presumptions  as  to  rights 
of  property  (in  particular  easements  and  incorporeal  heredi- 
taments) belong  not  to  the  Law  of  Evidence  but  to  the  Law 
of  Real  Property.  The  only  presumptions  which,  in  my 
opinion,  ought  to  find  a  place  in  the  Law  of  Evidence,  are 
those  which  relate  to  facts  merely  as  facts,  and  apart  from 
the  particular  rights  Avhich  they  constitute.  Thus  the  rule, 
that  a  man  not  heard  of  for  seven  years  is  presumed  to  be 
dead,  might  be  equally  applicable  to  a  dispute  as  to  the  va- 
lidity of  a  marriage,  an  action  of  ejectment  by  a  reversioner 
against  a  tenant  pur  auter  vie,  the  admissibility  of  a  declara- 
tion against  interest,  and  many  other  subjects.  After  care- 
ful consideration,  I  have  put  a  few  presumptions  of  this  kind 
into  a  chapter  on  the  subject,  and  have  passed  over  the  rest 
as  belonging  to  different  branches  of  the  Substantive  Law. 

Practice,  again,  appears  to  me  to  differ  in  kind  from  the 
Law  of  Evidence.  The  rules  which  point  out  the  manner  in 
which  the  attendance  of  witnesses  is  to  be  procured,  evidence 
is  to  be  taken  on  commission,  depositions  are  to  be  authenti- 
cated and  forwarded  to  the  proper  officers,  interrogatories 
are  to  be  administered,  etc.,  have  little  to  do  with  the  general 
principles  which  regulate  the  relevancy  and  proof  of  matters 
of  fact.  Their  proper  place  would  be  found  in  codes  of  civil 
and  criminal  procedure.  1  have,  however,  noticed  a  few  of 
the  most   important  of  these   matters. 

A  similar  remark  applies  to  a  great  mass  of  provisions  as 
to  the  proof  of  certain  particulars.  Under  the  head  of  "Pub- 
lic Documents,"  Mr.  Taylor  gives  among  other  things  a  list 
of  all,  or  most,  of  the  statutory  provisions  which  render  cer- 
tificates   or   certified    copies   admissible    in   particular   cases. 

To  take  an  illustration  at  random,  section  1458  begins  thus: 
"The  registration  of  medical  practitioners  under  the  Medical 
Act  of  1858,  may  be  proved  by  a  copy  of  the  'Medical  Reg- 
ister' for  the  time  being,  purporting,"  etc.  I  do  not  wish 
for  a  moment  to  undervalue  the  practical  utility  of  such 
information,  or  the  industry  displayed  in  collecting  it;  but 
such  a  provision  as  this  appears  to  me  to  belong,  not  to  the 
Law  of  Evidence,  but  to  the  law  relating  to  medical  men. 
It  is  matter  rather  for  an  index  or  schedule  than  for  a  legal 
treatise,  intended  to  be  studied,  understood,  and  borne  in 
mind  in  practice. 

On  several  other  points  the  distinction  between  the  Law 
of  Evidence  and  other  branches  of  the  law  is  more  difficult 
to  trace.  For  instance,  the  law  of  estoppel,  and  the  law 
relating  to  the  interpretation  of  written  instruments,  both 
run  into  the  Law  of  Evidence.  I  have  tried  to  draw  the  line 
by  dealing  in  the  case  of  estoppels  with  estoppels  in  pais 
only,  to  the  exclusion  of  estoppels  by  deed  and  by  matter  of 
record,  which  must  be  pleaded  as  such;  and  in  regard  to 
the  law  of  written  instruments  by  stating  those  rules  only 
which  seemed  to  me  to  bear  directly  on  the  question  whether 
a  document  can  be  supplemented  or  explained  by  oral  evi- 
dence. 

The  result  is  no  doubt  to  make  the  statement  of  the  law 
much  shorter  than  is  usual.  1  hope,  however,  that  competent 
judges  will  find  that,  as  far  as  it  goes,  the  statement  is  both 
full  and  correct.  As  to  brevity,  1  may  say,  in  the  words  of 
Lord  Mansfield: — "The  law  does  not  consist  of  particular 
cases,  but  of  general  principles  which  are  illustrated  and 
explained  by  those  cases."* 

Everv  one  will  express  somewhat  differently  the  principles 
which  he  draws  from  a  number  of  illustrations;  and  this  is 
one  source  of  that  quality  of  our  law  which  those  who  dis- 
like it  describe  as  vagueness  and  uncertainty,   and  those   who 


"K.    v.    Bembridge,    3    Doug.    332. 


INTRODUCTION.  xxvii 


like  it  as  elasticity.  I  dislike  the  quality  in  question,  and  I 
used  to  think  that  it  would  be  an  improvement  if  the  law 
were  once  for  all  enacted  in  a  distinct  form  by  the  Legis- 
lature, and  were  definitely  altered  from  time  to  time  as  oc- 
casion required.  For  many  years  I  did  my  utmost  to  get 
others  to  take  the  same  view  of  the  subject,  but  I  am  now 
convinced  by  experience  that  the  unwillingness  of  the  Leg- 
islature to  undertake  such  an  operation  proceeds  from  a  want 
of  confidence  in  its  power  to  deal  with  such  subjects,  which 
is  neither  unnatural  nor  unfounded.  It  would  be  as  impos- 
sible to  get  in  Parliament  a  really  satisfactory  discussion  of 
a  Bill  codifying  the  Law  of  Evidence  as  to  get  a  committee 
of  the  whole  House  to  paint  a  picture.  It  would,  I  am  equally 
well  satisfied,  be  quite  as  difficult  at  present  to  get  Parlia- 
ment to  delegate  its  powers  to  persons  capable  of  exercising 
them  properly.  In  the  meanwhile  the  Courts  can  decide  only 
upon  cases  as  they  actually  occur,  and  generations  may  pass 
before  a  doubt  is  set  at  rest  by  a  judicial  decision  expressly 
in  point.  Hence,  if  anything  considerable  is  to  be  done  to- 
wards the  reduction  of  the  law  to  a  system,  it  must,  at  present 
at   least,   be   done   by   private    writers. 

Legislation  proper  is  under  favorable  conditions  the  best 
way  of  making  the  law,  but  if  that  is  not  to  be  had,  indirect 
legislation,  the  influence  on  the  law  of  judges  and  legal 
writers  who  deduce,  from  a  mass  of  precedents,  such  prin- 
ciples and  rules  as  appear  to  them  to  be  suggested  by  the 
great  bulk  of  the  authorities,  and  to  be  in  themselves  rational 
and  convenient,  is  very  much  better  than  none  at  all.  It  has, 
indeed,  special  advantages,  which  this  is  not  the  place  to 
insist  upon.  I  do  not  think  the  law  can  be  in  a  less  cred- 
itable condition  than  that  of  an  enormous  mass  of  isolated 
decisions,  and  statutes  assuming  unstated  principles, — cases 
and  statutes  alike  being  accessible  only  by  elaborate  indexes. 
I  insist  upon  this  because  I  am  well  aware  of  the  prejudice 
which  exists  against  all  attempts  to  state  the  law  simply, 
and  of  the  rooted  belief  which  exists  in  the  minds  of  many 
lawyers  that  all  general  propositions  of  law  must  be  mis- 
leading, and  delusive,  and  that  law  books  are  useless  except 
as  indexes.  An  ancient  maxim  says,  "Omnis  definitio  in  jure 
periculosa."  Lord  Coke  wrote,  '"It  is  ever  good  to  rely  upon 
the  books  at  large;  for  many  times  compendia  sunt  dispendia, 
and  melius  est  petere  fontes  quam  sectari  rivulos."  Mr. 
Smith  chose  this  expression  as  the  motto  of  his  "Leading 
Cases,"  and  the  sentiment  which  it  embodies  has  exercised 
immense  influence  over  our  law.  It  has  not  perhaps  been 
sufficiently  observed  that  when  Coke  wrote,  the  "books  at 
large,"  namely  the  "Year  Books"  and  a  very  few  more  mod- 
ern reports,  contained  probably  about  as  much  matter  as  two, 
or  at  most  three,  years  of  the  reports  published  by  the  Coun- 
cil of  Law  Reporting;  and  that  the  compendia  (such  books, 
say,  as  Fltzherbert's  "Abridgment")  were  merely  abridg- 
ments of  the  rases  in  the  "Year  Books"  classified  in  the 
roughest  possible  manner,  and  much  inferior  both  in  extent 
and    arrangement   to   such    a    book    as    Fisher's    "Digest."* 

In  our  own  days  it  appears  to  me  that  the  true  fontes  are 
not  to  lie  found  in  reported  cases,  but  in  the  rules  and  prin- 
ciples  which  such  cases  imply,  and  that  the  cases  themselves 


'Since  the  beginning  of  1865  the  Council  has  published 
eighty-six  volumes  of  Reports.  The  Year  Books  from  1307- 
1635,  228  years,  would  till  not  more  than  twenty-five  such 
volumes.  There  arc  also  ten  volumes  of  Statutes  since  1865 
i. May  1876).  There  are  now  (Feb.,  1877),  at  least  ninetv- 
three  volumes  of  Reports  and  eleven  volumes  of  Statutes. 
I  have  not  counted  the  exact  number  in  existence  in  1881,  but 
the    ninety-three    volumes   must    have    grown    to    120    or    more. 


xxviii  INTRODUCTION. 


are  the  rivuli,  the  following-  of  which  is  a  dispendium.  My 
attempt  in  this  work  has  been  emphatically  petere  fontes,  to 
reduce  an  important  branch  of  the  law  to  the  form  of  a  con- 
nected   system    of   intelligible   rules   and   principles. 

Should  the  undertaking  be  favorably  received  by  the  pro- 
fession and  the  public,  I  hope  to  apply  the  same  process  to 
some  other  branches  of  the  law;  for  the  more  I  study  and 
practice  it,  the  more  firmly  am  I  convinced  of  the  excellence 
of  its  substance  and  the  defects  of  its  form.  Our  earlier 
writers,  from  Coke  to  Blackstone,  fell  into  the  error  of  as- 
serting the  excellence  of  its  substance  in  an  exaggerated 
strain,  whilst  they  showed  much  insensibility  to  defects,  both 
of  substance  and  form,  which  in  their  time  were  grievous 
and  glaring.  Bentham  seems  to  me  in  many  points  to  have 
fallen  into  the  converse  error.  He  was  too  keen  and  bitter 
a  critic  to  recognize  the  substantial  merits  of  the  system 
which  he  attacked;  and  it  is  obvious  to  me  that  he  had  not 
that  mastery  of  the  law  itself  which  is  unattainable  by  mere 
theoretical  study,  even  if  the  student  is,  as  Bentham  cer- 
tainly was,   a  man  of  talent,   approaching   closely   to   genius. 

During  the  last  twenty-five  years  Bentham's  influence  has 
to  some  extent  declined, — partly  because  some  of  his  books 
are  like  exploded  shells,  buried  under  the  ruins  which  they 
have  made,  and  partly  because  under  the  influence  of  some 
of  the  most  distinguished  of  living  authors,  great  attention 
has  been  directed  to  legal  history,  and  in  particular  to  the 
study  of  Roman  Law.  It  would  be  difficult  to  exaggerate 
the  value  of  these  studies,  but  their  nature  and  use  is  liable 
to  be  misunderstood.  The  history  of  the  Roman  Law  no 
doubt  throws  great  light  on  the  history  of  our  own  law;  and 
the  comparison  of  the  two  great  bodies  of  law,  under  one  or 
the  other  of  which  the  laws  of  the  civilized  world  may  be  clas- 
sified, cannot  fail  to  be  instructive;  but  the  history  of  bygone 
institutions  is  valuable  mainly  because  it  enables  us  to  under- 
stand, and  so  to  improve  existing  institutions.  It  would  be 
a  complete  mistake  to  suppose  either  that  the  Roman  Law 
is  in  substance  wiser  than  our  own,  or  that  in  point  of  ar- 
rangement and  method  the  Institutes  and  the  Digest  are 
anything  but  warnings.  The  pseudo-philosophy  of  the  Insti- 
tutes and  the  confusion  of  the  Digest,  are,  to  my  mind,  in- 
finitely more  objectionable  than  the  absence  of  arrangement 
and  of  all  general  theories,  good  or  bad,  which  distinguish 
the  Law  of  England. 

However  this  mav  be,  I  trust  the  present  work  will  show 
that  the  law  of  England  on  the  subject  to  which  it  refers  is 
full  of  sagacity  and  practical  experience,  and  is  capable  of 
being  thrown  into  a  form  at  once  plain,  short,  and  systematic. 

I  wish,  in  conclusion,  to  direct  attention  to  the  manner  in 
which  I  have  dealt  with  such  parts  of  the  Statute  Law  as 
are  embodied  in  this  work.  I  have  given,  not  the  very  words 
of  the  enactments  referred  to,  but  what  I  understand  to  be 
their  effect,  though  in  doing  so  I  have  deviated  as  little  as 
possible  from  the  actual  words  employed.  I  have  done  this 
in  order  to  make  it  easier  to  study  the  subject  as  a  whole. 
Every  Act  of  Parliament  which  relates  to  the  Law  of  Evi- 
dence assumes  the  existence  of  the  unwritten  law.  It  can- 
not, therefore,  be  fully  understood,  nor  can  its  relation  to 
other  parts  of  the  law  be  appreciated,  till  the  unwritten  law 
has  been  written  down  so  that  the  provisions  of  particular 
statutes  may  take  their  places  as  parts  of  it.  When  this  is 
done,  the  Statute  Law  itself  admits  of,  and  even  requires, 
very  great  abridgment.  In  many  cases  the  result  of  a  num- 
ber of  separate  enactments  may  be  stated  in  a  line  or  two. 
For  instance,  the  old  Common  Law  as  to  the  incompetency  of 
certain    classes    of   witnesses   was   removed   by    parts   of    six 


INTRODUCTION.  xxix 


different  Acts  of  Parliament,  the  net  result  of  which  is  given 
in    five   short   articles    (106-110). 

So,  too,  the  doctrine  of  incompetency  for  peculiar  or  de- 
fective religious  belief  has  been  removed  by  many  different 
enactments,  the  effect  of  which  is  shown  in  one  article   (123). 

The  various  enactments  relating  to  documentary  evidence 
(see  chapter  x.)  appear  to  me  to  become  easy  to  follow  and 
to  appreciate  when  they  are  put  in  their  proper  places  in  a 
general  scheme  of  the  law,  and  arranged  according  to  their 
subject-matter.  By  rejecting  every  part  of  an  Act  of  Par- 
liament except  the  actual  operative  words  which  constitute 
its  addition  to  the  law,  and  by  setting  it,  so  to  speak,  in  a 
definite  statement  of  the  unwritten  law  of  which  it  assumes 
the  existence,  it  is  possible  to  combine  brevity  with  substan- 
tial accuracy  and  fullness  of  statement  to  an  extent  which 
would  surprise  those  who  are  acquainted  with  Acts  of  Par- 
liament only  as  they  stand  in  the  Statute  Book.*  At  the  same 
time  I  should  warn  anyone  who  may  use  this  book  for  the 
purposes  of  actual  practice  in  or  out  of  court,  that  he  would 
do  well  to  refer  to  the  very  words  of  the  statutes  embodied 
in  it.  It  is  very  possible  that,  in  stating  their  effect  instead 
of  their  actual  words,  I  may  have  given  in  some  particulars 
a   mistaken    view   of   their   meaning. 

Such  are  the  means  by  which  I  have  endeavored  to  make  a 
statement  of  the  Law  of  Evidence  which  will  enable  not  only 
students  of  law,  but  I  hope  any  intelligent  person  who  cares 
enough  about  the  subject  to  study  attentively  what  I  have 
written,  to  obtain  from  it  a  knowledge  of  that  subject  at 
once  comprehensive  and  exact, — a  knowledge  which  would 
enable  him  to  follow  in  an  intelligent  manner  the  proceed- 
ings of  courts  of  justice,  and  which  would  enable  him  to 
study  cases  and  use  text-books  of  the  common  kind  with 
readiness  and  ease.  I  do  not  say  more  than  this.  I  have  not 
attempted  to  follow  the  matter  out  into  its  minute  ramifica- 
tions, and  I  have  avoided  reference  to  what,  after  all,  are 
little  more  than  matters  of  curiosity.  I  think,  however,  that 
anyone  who  makes  himself  thoroughly  acquainted  with  the 
contents  of  this  book,  will  know  fully  and  accurately  all  the 
leading  principles  and  rules  of  evidence  which  occur  in  actual 
practice. 

If  I  am  entitled  to  generalize  at  all  from  my  own  expe- 
rience, I  think  that  even  those  who  are  already  well  ac- 
quainted with  the  subject  will  find  that  they  understand  the 
relations  of  its  different  parts,  and  therefore  the  parts  them- 
selves more  completely  than  they  otherwise  would,  by  being 
enabled  to  take  them  in  at  one  view,  and  to  consider  them 
in    their   relation    to   each    other. 


♦Twenty  articles  of  this  work  represent  all  that  is  material 
in  the  ten  Acts  of  Parliament,  containing  sixty-six  sections, 
which  have  been  passed  on  the  subject  to  which  it  refers.  For 
the  detailed   proof  of  this,   See   Note  XLVIII. 


A  DIGEST 
OF   THE 

LAW  OF  EVIDENCE 

FOR 

THE  WESTERN  STATES 

PART  I. 

RELEVANCY. 

CHAPTER  I. 

Preliminary. 

Article  1.* 

Definition  of  Terms. 

In  this  book  the  following  words  and  expres- 
sions are  used  in  the  following  senses  unless  a 
different  intention  appears  from  the  context. 

"Judge"  includes  all  persons  authorized  to  take 
evidence,  either  by  law  or  by  the  consent  of  the 
parties. 

Montana.  The  term  "judge,"  in  §  547,  Code  Civ.  Proc, 
undoubtedly  refers  to  the  judge  of  a  court  of  justice,  and 
the  verb  "act,"  as  there  used,  refers  to  the  exercise  of 
judicial  functions  in  an  action  or  proceeding  therein. — 
First  Nat.  Bank  v.  Roberts,  9  Mont.  323,  23  P.  718,  722. 
Texas.  A  judge,  technically  speaking,  may  not  be  a  rep- 
resentative of  the  state  in  prosecuting  parties  charged 
with  crime;  but  he  is,  nevertheless,  an  officer  of  the  state, 
charged  with  the  high  and  responsible  duty  of  seeing  that 


*See  note  at  end  of  Article. 


2  DEFINITION  OF  TERMS 

the  law  is  faithfully  administered. — Cox  v.  State,  8  Tex. 
Cr.  R.  254,  282. 

The  terms  "court"  and  "judge,"  as  used  in  the  statute 
relating  to  the  regulation  of  appeals,  are  not  intended  to 
be  used  interchangeably. — Chickasha  Milling  Co.  v. 
Crutcher  (Tex.  Civ.  App.),  141  S.  W.  355. 

"Fact"  includes  the  fact  that  any  mental  con- 
dition of  which  any  person  is  conscious  exists. 

[This  term,  of  course,  is  used  also  in  its  ordinary  sig- 
nification of  matters  upon  which  testimony  is  given,  or 
desired  to  be  given,  etc.] 

California.  Collateral  facts  are  such  as  are  offered  in 
evidence  to  establish  the  matters  or  facts  in  issue. — Gar- 
wood v.  Garwood,  29  Cal.  514,  521. 

Kansas.  A  verification  stating  that  "the  facts  therein  set 
forth  are  true,"  is  not  meaningless  on  the  ground  that 
facts  are  always  true,  but  the  word  will  be  held  to  mean 
"matters,"  to  represent  the  thing  asserted.— State  v.  Grin- 
stead,  10  Kan.  App.  74,  61  P.  976. 

"Document"  means  any  substance  having  any 
matter  expressed  or  described  upon  it  by  marks 
capable  of  being  read. 

Washington.  Where  a  statute  gives  the  right  to  a  new 
trial  in  a  criminal  case  when  the  jury  has  received  "any 
evidence,  paper,  document,  or  book,  not  allowed  by  the 
court,"  etc.,  the  word  "evidence"  means  tangible  evidence, 
as  a  book,  paper,  or  document  in  evidence,  while  the 
words  "paper,  document  or  book"  mean  a  paper,  document 
or  book  not  in  evidence. — Doctor  Jack  v.  Territory,  2 
Wash.  T.  101,  3  P.  832. 

"Evidence"  means — 

(1)  Statements  made  by  witnesses  in  court 
under  a  legal  sanction,  in  relation  to  matters  of 
fact  under  inquiry;  such  statements  are  called 
oral  evidence. 


DEFINITION  OF  TERMS  3 

(2)  Documents  produced  for  the  inspection  of 
the  court  or  judge;  such  documents  are  called 
documentary  evidence. 

The  word  "evidence,"  in  legal  acceptation,  includes  all 
the  means  by  which  any  alleged  matter  of  fact,  the  truth 
of  which  is  submitted  to  investigation,  is  established  or 
disproved. — 1  Greenl.  Ev.,  §   1. 

Any  knowable  fact  or  group  of  facts,  not  a  legal  or  a 
logical  principle,  considered  with  a  view  to  its  being  of- 
fered before  a  legal  tribunal  for  the  purpose  of  producing 
a  conviction,  positive  or  negative,  on  the  part  of  the  trib- 
unal, as  to  the  truth  of  a  proposition,  not  of  law  or  of 
logic,  on  which  the  determination  of  the  tribunal  is  to 
be  asked. — 1  Wigmore  Ev.,  §  1. 

California.  Evidence  is  simply  the  means  of  proving  a 
fact;  that  which  tends  to  establish  a  fact. — People  v. 
Bowers  (Cal.),  18  P.  660,  665. 

Nebraska.  The  word  "evidence,"  when  used  in  an  instruc- 
tion, is  understood  to  include  all  the  means  employed  at 
the  trial  to  ascertain  the  truth  respecting  the  matters  in 
dispute.— Lamb  v.  State,  69  Neb.  212,  95  N.  W.  1050. 
Washington.  Evidence  is  the  medium  through  which 
proof  is  established,  though  in  language  of  statutes  and 
otherwise  "proof"  is  often  used  as  a  synonym  with  evi- 
dence.—State  v.  Poole,  64  Wash.  47,  116  P.  468. 
Best   Evidence. 

(The  rule  that  the  best  evidence  must  be  produced 
which  can  be  adduced  in  the  nature  of  the  case  has  ref- 
erence almost  entirely  to  the  production  of  relevant  docu- 
ments themselves,  rather  than  of  copies  and  other  sec- 
ondary evidence  of  their  contents  or  existence.  As  some- 
times expressed,  "primary"  evidence  is  required  when 
possible,  in  preference  to  "secondary"  evidence. 

The  term,  "best  evidence,"  is  sometimes  used  as  per- 
taining to  a  choice  of  witnesses,  one,  from  superior  knowl- 
edge or  other  reasons,  being  more  likely  to  disclose  the 
fact  than  another.] 

The  rule,  commonly  called  the  best  evidence  rule,  which 
requires  the  best  evidence  of  which  the  case  in  its  nature 


4  DEFINITION  OF  TERMS 

is  susceptible,  does  not  demand  the  greatest  amount  of 
evidence  which  can  possibly  be  given  of  any  fact,  but  its 
design  is  to  prevent  the  introduction  of  any  which, 
from  the  nature  of  the  case,  supposes  that  better  evidence 
is  in  the  possession  of  the  party.  Thus  a  title  by  deed 
must  be  proved  by  the  production  of  the  deed  itself,  for 
this  is  the  best  evidence  of  which  the  case  is  susceptible. 
— Manhattan  Malting  Co.  v.  Sweteland,  14  Mont.  269,  36 
P.  269;   Scott  v.  State,  3  Tex.  App.  103. 

The  subject  of  Best  Evidence  is  treated  at  length  in 
Ch.  IX. 

Circumstantial    Evidence. 

[Testimony  as  to  character,  physical  capacity,  habit, 
knowledge,  design  or  plan,  intent,  motive,  identity,  oppor- 
tunity, etc.,  are  all  in  the  nature  of  circumstantial  evi- 
dence, as  pointing  to  the  factum  probandum.] 

ninstration. 

[The  question  was  whether  the  roof  of  an  ice  house  was 
set  on  fire  by  defendant's  locomotive.  No  one  saw  a  spark 
from  the  engine  alight  upon  and  set  fire  to  the  roof.  The 
question  whether  the  engine  so  set  the  fire  was  one  to  be 
determined  by  circumstantial  evidence. — Liverpool  &  L.  &  G. 
Ins.  Co.  v.  Southern  Pac.  Co.,  125  Cal.  434,  58  P.  55.] 

[See  illustrations  under  Arts.  9-13;  1  Wigmore  Ev.,  §  38.] 

Circumstantial  evidence  is  of  two  kinds,  namely,  cer- 
tain, or  that  from  which  the  conclusion  in  question  nec- 
essarily follows;  and  uncertain,  or  that  from  which  the 
conclusion  does  not  necessarily  follow,  but  is  probable 
only,  and  is  obtained  by  process  of  reasoning. — 1  Greenl. 
Ev.,  §  13a;  Liverpool  &  L.  &  G.  Ins.  Co.  v.  Southern  Pac. 
Co.,  125  Cal.  434,  58  P.  55,  58;  People  v.  Morrow,  60  Cal. 
143. 

Where  a  conviction  is  sought  upon  circumstantial  evi- 
dence alone  the  defendant  cannot  be  convicted  unless  the 
state  has  proven  beyond  a  reasonable  doubt,  by  facts  and 
circumstances,  all  of  which  are  consistent  with  each  other 
and  with  his  guilt,  and  inconsistent  with  any  reasonable 
theory  of  innocence. — People  v.  Strong,  30  Cal.  151;  Har- 
rison v.  State,  6  Tex.  App.  42. 


DEFINITION  OF  TERMS  5 

California.  Circumstantial  evidence  of  a  crime  is  proof 
by  testimony  of  a  chain  of  circumstances  pointing  suffi- 
ciently strong  to  the  commission  of  the  crime.  Such  evi- 
dence may  consist  of  admissions  by  the  defendant,  plans 
laid  for  the  commission  of  the  crime,  such  as  putting  him- 
self in  a  position  to  commit  it;  in  short,  any  acts,  decla- 
rations or  circumstances  admitted  in  evidence  tending  to 
connect  the  defendant  with  the  commission  of  the  crime. 
—People  v.   Morrow,   60   Cal.   142. 

Idaho.  Circumstantial  evidence  in  criminal  cases  is  the 
proof  of  such  facts  or  circumstances  connected  with  or 
surrounding  the  commission  of  the  crime  as  tends  to  show 
the  guilt  or  innocence  of  accused. — State  v.  Marren,  17 
Ida.  766,  107  P.  993. 

Kansas.  Circumstantial  evidence  is  that  which  shows  the 
existence  of  one  fact  by  proof  of  the  existence  of  others 
from  which  the  first  is  to  be  inferred. — State  v.  Kornstett, 
62  Kan.  221,  61  P.  805,  808. 

Texas.  The  distinction  between  circumstantial  evidence 
and  direct  evidence  is  that  in  the  first  instance  the  facts 
apply  directly  to  the  factum  probandum,  while  circumstan- 
tial evidence  is  proof  of  a  minor  fact,  which,  by  indirection, 
logically  and  rationally  demonstrates  the  factum  proban- 
dum. This  is  illustrated  by  proof  of  recent  possession  of 
stolen  property.  In  such  a  case,  resting  alone  upon  such 
inculpatory  evidence,  the  eye  of  no  witness  saw  the  thief 
in  the  act  of  taking  the  property  stolen.  Bi\t  the  witness 
may  testify  directly  to  the  fact  of  seeing  the  thief,  re- 
cently after  the  crime,  in  possession  of  the  stolen  prop- 
erty, and,  when  his  possession  is  challenged,  either  declin- 
ing to  explain  or  giving  an  explanation  which  was  false, 
from  which  circumstances  of  the  possession,  directly 
sworn  to,  and  circumstances  of  a  failure  to  explain  or  a 
false  explanation,  the  factum  of  the  taking  is  inferred  or 
deduced  by  the  process  of  reasoning. — Beason  v.  State,  43 
Tex.  Cr.  R.  442.  67  S.  W.  96,  98. 

In  an  action  by  an  engineer  for  injuries,  the  company 
contended  it  did  not  know  the  condition  of  the  track, 
which  was  caused  by  an  unprecedented  rainfall.  Evidence 
of  a  station  agent  as  to  his  instructions  from  the  train 


6  DEFINITION   OF  TERMS 

dispatcher,  refusing  the  engineer's  request  to  take  a  sid- 
ing, was  admissible  to  show  knowledge. — Galveston,  H.  & 
S.  A.  Ry.  Co.  v.  Fitzpatrick  (Tex.  Civ.  App.),  91  S.  W.  355. 
Testimony  of  isolated  circumstances,  all  links  in  the 
chain  sought  to  be  established  by  circumstantial  evidence, 
is  admissible.— Davis  v.  State,  61  Tex.  Cr.  R.  611,  136 
S.  W.  45. 

Competent   Evidence. 

[This  term  is  used  mostly  as  a  synonym  of  "admissible."] 
Texas.  By  competent  evidence  is  meant  that  which  the 
very  nature  of  the  thing  to  be  proved  requires  as  the  fit 
and  appropriate  proof  in  the  particular  case. — Horbach  v. 
State,  43  Tex.  242,  249. 

Conclusive    Evidence. 
California.     Conclusive  or  unanswerable  evidence  is  that 
which  the  law  does  not  permit  to  be  contradicted  and  over- 
come by  other  evidence. — Moore  v.  Hopkins,  83  Cal.  270, 
23  P.  318. 

Corroborative  Evidence. 
California.  Testimony  of  an  accomplice  against  a  defend- 
ant, charged  with  burglary,  is  corroborated  sufficiently  to 
connect  defendant  with  the  commission  of  the  offense,  as 
required  by  statute,  by  proof  that,  there  being  stolen  gold 
and  silver  coin  to  the  amount  of  $313,  among  which  were 
four  $20  gold  pieces,  an  Australian  sovereign  and  a  $3  gold 
piece,  defendant  when  arrested  the  following  day,  had  in 
his  possession  four  $20  gold  pieces,  an  Australian  sover- 
eign, which  the  person,  whose  premises  were  robbed, 
testified  that  he  recognized,  and  a  $3  gold  piece. — People 
v.  Melvane,  39  Cal.  614. 

If  the  wife,  when  plaintiff  in  an  action  for  divorce,  tes- 
tifies that  she  detected  the  husband  in  the  act  of  adulter- 
ous intercourse,  her  testimony  is  sufficiently  corroborated, 
as  required  by  statute,  if  it  appears  that  the  other  party 
to  such  adulterous  intercourse  was  of  a  doubtful  character 
for  chastity,  and  that  the  husband  was  in  the  habit  of 
associating  with  women  of  bad  character,  and  that  this 
woman  had  been  the  only  female  inmate  of  his  house  for 
a  long  time. — Evans  v.  Evans,  41  Cal.  103. 


DEFINITION  OF  TERMS  7 

Montana.  Statutory  corroboration  of  an  accomplice  was 
made  by  other  evidence  which  in  itself,  and  without  the 
aid  of  the  testimony  of  the  accomplice,  tended  to  connect 
defendant  with  a  murder. — State  v.  Calder,  23  Mont.  504, 
59  P.  903. 

New  Mexico.  Corroborating  evidence  is  such  evidence  as 
tends,  in  some  degree,  of  its  own  strength  and  independ- 
ently, to  support  some  essential  allegation  or  issue  raised 
by  the  pleadings  testified  to  by  the  witness  whose  evidence 
is  sought  to  be  corroborated,  which  allegation  or  issue, 
if  unsupported,  would  be  fatal  to  the  case;  and  such  cor- 
roborating evidence  must,  of  itself,  without  the  aid  of 
any  other  evidence,  exhibit  its  corroborative  character  by 
pointing,  with  reasonable  certainty,  to  the  allegation  or 
issue  which  it  supports.  And  such  evidence  will  not  be 
material  unless  the  evidence  sought  to  be  corroborated  it- 
self supports  the  allegation  or  point  in  issue.— Gildersleve 
v.  Atkinson,  6  N.  M.  250,  27  P.  477. 

Oregon.  What  is  meant  by  corroborating  evidence  of  the 
testimony  of  one  witness  to  perjury  is  evidence  aliunde — 
evidence  which  tends  to  show  the  perjury  independent  of 
the  defendant's  contrary  declarations  out  of  court  or  oth- 
erwise.—State  v.  Buckley,  18  Or.  228,  27  P.  838. 
Texas.  Statutory  corroboration  of  perjury  necessary  to 
supplement  the  testimony  of  one  witness  may  be  by  cir- 
cumstantial evidence,  consisting  of  proof  of  independent 
facts  which,  together,  tend  to  establish  the  main  fact,  that 
is,  the  falsity  of  the  oath,  and  which,  together,  strongly 
corroborate  the  truth  of  a  single  witness  who  has  testified 
to  such  falsity. — Hernandez  v.  State,  18  Tex.  App.  134,  51 
Am.  Rep.  295. 

Cumulative  Evidence. 

Kansas.  The  fact  that  the  newly-discovered  evidence  may 
tend  to  prove  the  same  issue  upon  which  proof  was  offered 
on  the  trial  does  not  necessarily  make  it  cumulative,  and 
whether  or  not  it  is  cumulative  is  to  be  determined  from 
its  kind  and  character  rather  than  from  its  effect. — Win- 
field  Building  &  Loan  Ass'n  v.  McMullen,  59  Kan.  493,  53 
P.  481. 


8  DEFINITION  OF  TERMS 

The  question  was  whether  a  surety  signed  the  bond 
upon  which  suit  was  brought,  but  which  at  the  time  of 
trial  was  lost.  Testimony  was  offered  as  to  its  existence 
and  execution,  and  after  judgment  for  defendant  the  bond 
was  found  and  urged  as  newly-discovered  evidence.  The 
bond  was  held  not  merely  cumulative  evidence. — Winfield 
Building  &  Loan  Ass'n  v.  McMullen,  59  Kan.  493,  53  P.  481. 
Nevada.  That  only  is  cumulative  evidence  which  is  in 
addition  to  or  corroborative  of  what  has  been  given  at  the 
trial.  To  render  evidence  subject  to  this  objection,  on  an 
application  for  new  trial,  it  must  be  cumulative,  not  with 
respect  to  the  main  issue  between  the  parties,  but  upon 
some  collateral  or  subordinate  fact  bearing  upon  that  issue. 
(Admissions  of  grantor  of  plaintiff  that  title  to  lot  was 
in  defendant's  grantor  held  not  cumulative,  where  no  other 
testimony  as  to  admissions  had  appeared  at  the  trial.) — 
Gray  v.  Harrison,  1  Nev.  506. 

Demonstrative   Evidence. 
[This  is  where  the  object  which  is  the  source  of  the  evi- 
dence is  directly  presented  to  the  senses  of  the  tribunal. 
It  is  sometimes  called  "Real  Evidence."     The  matter  will 
be  treated  under  Art.  62,  infra.] 

Direct   Evidence. 

[Direct  evidence  is  a  term  commonly  used  to  denote  tes- 
timony of  a  witness  asserting  that  he  perceived  with  his 
senses  the  fact  which  is  sought  to  be  proved, — as  the  ex- 
ecution of  an  instrument,  the  beating  or  killing  of  one 
person  by  another,  the  presence  of  a  person  at  a  given 
place  and  time,  etc.  In  this  sense  it  is  distinguished  from 
circumstantial  evidence,  which  seeks  to  prove  an  act 
or  matter,  by  testimony,  not  that  any  person  directly  per- 
ceived the  act  or  matter,  but  that  he  perceived  other  things 
which  would  render  the  main  fact  or  matter  probable.  The 
expression,  "Oral  evidence  must  be  direct,"  in  Art.  62,  infra, 
is  used  in  another  sense,  namely,  that  the  person  testify- 
ing must  speak  of  his  own  knowledge  as  to  the  matters 
about  which  he  gives  testimony,  and  not  recite  the  hear- 
say statements  of  others.] 
California.     Direct  or  positive  evidence  is  when  a  witness 


DEFINITION  OF  TERMS  9 

can  be  called  to  testify  to  the  precise  fact  which  is  the 
subject  of  the  issue  on  trial. — People  v.  Morrow,  60  Cal. 
142,  144. 

Montana.  The  death  of  a  person  alleged  to  have  been 
killed  is  directly  proved  by  the  identification  of  certain 
teeth  and  charred  bones  as  those  of  an  adult  person,  and 
the  testimony  of  an  accomplice,  corroborated  by  circum- 
stantial evidence,  which  in  itself  tended  to  prove  such 
identity.— State  v.  Calder,  23  Mont.  504,  59  P.  903. 
Texas.  Direct  evidence  is  where  the  testimony  applies 
directly  to  the  factum  probandum. — Beason  v.  State,  43 
Tex.  Cr.  R.  442,  67  S.  W.  96,  98. 

Hearsay   Evidence. 

[Hearsay  evidence  is  that  which  attempts  to  prove  the 
event  in  question,  not  by  the  assertion  of  one  who  has 
personal  knowledge  of  it,  but  by  a  transmission  of  his 
extra  judicial  assertion  through  the  medium  of  a  witness 
who  knows  not  of  the  event,  but  of  the  former's  narration 
in  respect  to  it.  The  hearsay  rule  is  subject  to  numerous 
exceptions,  and  both  the  rule  and  its  exceptions  form  the 
subject  matter  of  Chapter  IV.] 

Illustration. 
[The  question  is,  whether  the  husbana  or  the  wife  per- 
ished first,  by  murder  and  burning  of  the  house  in  which  they 
lived.  The  verdict  of  a  coroner's  jury,  not  purporting  to  con- 
tain a  statement  of  any  facts  within  the  knowledge  of  the 
coroner,  is  mere  hearsay  and  inadmissible. — Hollister  v.  <"..r- 
dero,  76  Cal.  649,  18   P.   855.] 

California.  The  exclusion  of  hearsay  evidence  is  based 
upon  the  principle  that  every  litigant  who  comes  into  a 
court  of  justice  has  a  clear  right  to  have  the  witness 
against  him  brought  into  court  face  to  face,  so  that  he 
may  be  tested  by  cross-examination  as  to  every  fact  con- 
cerning which  he  has  given  evidence.  It  has  been  said 
that  a  person  who  relates  a  hearsay  is  not  obliged  to  enter 
into  any  particulars,  to  answer  any  questions,  to  solve 
any  difficulties,  to  reconcile  any  contradictions,  to  ex- 
plain any  obscurities,  to  remove  any  ambiguities.  He 
entrenches   himself   in   his   simple  assertion   that  he  was 


10  DEFINITION  OF  TERMS 

told  so  and  so,  and  leaves  the  burden  upon  his  dead  or 
absent  author.— San  Francisco  Teaming  Co.  v.  Gray,  11 
Cal.  App.  314,  104  P.  999. 

Oregon.  Hearsay,  in  its  legal  sense,  denotes  that  kind  of 
evidence  which  does  not  derive  its  value  solely  from  the 
credit  to  be  given  to  the  witness,  himself,  but  rests,  also, 
in  part,  on  the  veracity  and  competency  of  some  other 
persons.— State  v.  Ah  Lee,  18  Or.  540,  23  P.  424. 

Incompetent  Evidence. 

[The  word  "incompetent"  is  frequently  used  in  stating 
objections  to  evidence  and  has  a  meaning  practically  iden- 
tical with  "inadmissible"  and  "irrelevant."] 
Texas.  "If  there  be  any  material  difference  between  'in- 
competent' and  'not  permissible  under  the  rules  of  evi- 
dence,' it  is  not  quite  apparent  to  us." — Texas  Brewing 
Co.  v.  Dickey  (Tex.  Civ.  App.),  43  S.  W.  577. 
Indirect  Evidence. 

[This  term  is  sometimes  used  in  the  sense  of  circum- 
stantial evidence,  as  contra-distinguished  from  direct  evi- 
dence.] 

Negative  Evidence. 
California.  Ledger  showing  no  entry  of  item  sued  on,  ad- 
missible.— Ford  v.  Cunningham,  87  Cal.  209,  25  P.  403. 
Colorado.  Testimony  of  postmaster  that  records  of  post- 
office  did  not  show  any  registered  letters  in  question  to 
have  been  received,  admissible. — Knapp  v.  Day,  4  Colo. 
App.  21,  34  P.  1008. 

An  alibi  may  become  material  in  a  civil  case,  as  on 
an  issue  as  to  whether  a  note  made  at  a  certain  time  and 
place  was  a  forgery. — Brown  v.  Tourtelotte,  24  Colo.  214, 
50  P.  195. 

Kansas.  Testimony  of  a  cashier  and  bookkeeper  of  bank 
that  he  had  made  all  entries  of  money  received  at  bank 
and  had  made  examination  of  the  books,  and  that  they  did 
not  show  a  payment  in  question,  admissible. — Woods  v. 
Hamilton,  39  Kan.  69,  17  P.  335. 

A  book  containing  a  list  of  depositors  is  admissible  to 
show  that  a  person  has  no  account. — State  v.  McCormick, 
57  Kan.  440,  46  P.  777. 


DEFINITION  OF  TERMS  11 

Montana.  Where  character  is  in  issue,  testimony  of  a 
witness,  in  a  position  to  know  what  people  say  about  a 
person,  that  he  has  neyer  heard  the  character  of  such 
person  questioned,  is  admissible. — Matusevitz  v.  Hughes, 
26  Mont.  212,  68  P.  467. 

South  Dakota.  Account  books  of  a  commercial  house,  con- 
taining no  credit  or  evidence  of  payment,  some  evidence 
of  nonpayment  of  claim. — Union  School  Furniture  Co.  v. 
Mason,  3  S.  D.  147,  52  N.  W.  671. 

Texas.  The  fact  that  letters  sent  to  certain  persons  at 
a  certain  town  were  returned  was  not  admissible  to  show 
that  the  parties  did  not  live  in  that  neighborhood. — Daw- 
son v.  State,  38  Tex.  Cr.  R.  50,  41  S.  W.  599. 

In  an  action  by  an  employe  for  injuries  sustained  by  the 
breaking  of  a  ladder  while  he  was  descending  into  a  tank 
car,  testimony  of  another  employe  that  no  ladder  had 
ever  broken  with  him  in  a  tank  car,  is  inadmissible. — 
Adams  v.  Gulf,  C.  &  S.  Ry.  Co.  (Tex.  Civ.  App.),  105 
S.  W.  526.  Nor  that  no  one  had  ever  been  before  injured 
by  a  flying  staple. — Bering  Mfg.  Co.  v.  Peterson  (Tex. 
Civ.  App.),  67  S.  W.  133. 

That  there  was  no  record  of  a  marriage  license  in  the 
office  of  the  county  clerk  did  not  show  that  no  such  license 
had  never  been  issued. — Wiess  v.  Hall  (Tex.  Civ.  App.), 
135  S.  W.  384. 

The  custodian  of  an  office,  and  not  a  stranger,  is  the 
proper  person  to  prove  that  a  record  of  conveyance  does 
not  exist. — Mounger  v.  Daugherty  (Tex.  Civ.  App.),  138 
S.   W.  1070. 

Where  the  person  who  makes  the  statement  that  he 
did  not  hear  or  see  the  particular  incident  inquired  about 
is  so  placed,  and  the  circumstances  surrounding  him  at 
the  time  as  to  his  ability  to  hear  and  see  are  such  that 
his  failure  to  hear  or  see  the  incident  may  be  inconsistent 
with  the  happening  of  the  event,  such  person's  negative 
testimony  in  opposition  to  affirmative  statements  is  ad- 
missible. (Question  as  to  announcement  of  means  of 
exit  from  train.)— Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Taylor, 
(Tex.  Civ.  App.),  153  S.  W.  355. 

Washington.  Negative  testimony  is  competent  and  at 
times  the  only  testimony  by  which  an  issue  may  be  estab- 


12  DEFINITION  OP  TERMS 

lished. — Schon  v.  Modern  Woodmen  of  America,  51  Wash. 
482,   99   P.   25. 

Presumptive  Evidence. 
Kansas.  Circumstantial  or  presumptive  evidence  is  that 
which  shows  the  existence  of  one  fact  by  proof  of  the  ex- 
istence of  others  from  which  the  first  may  be  Inferred. — 
State  v.  Kornstett,  62  Kan.  221,  61  P.  805,  808. 
Nebraska.  Presumptive  evidence  consists  in  the  proof  of 
minor  or  other  facts,  incidental  to  or  usually  connected 
with  the  fact  sought  to  be  proved,  which,  taken  together, 
inferentially  establish  or  prove  the  fact  in  question  to  a 
reasonable  degree  of  certainty. — Horbach  v.  Miller,  4 
Neb.  31,  44. 

North  Carolina.  This  term  is  also  sometimes  used  in  the 
sense  of  "prima  facie"  evidence. — State  v.  Mitchell,  119 
N.  C.  784,  25  S.  E.  783. 

Prima  Facie   Evidence. 

California.  Prima  facie  evidence  is  that  which  suffices 
for  the  proof  of  a  particular  fact  until  contradicted  and 
overcome  by  other  evidence. — Moore  v.  Hopkins,  83  Cal. 
270,  23  P.  318. 

Kansas.  The  fact  that  soon  after  the  passing  of  an  engine 
a  fire  starts  near  a  railway  track  in  an  enclosed  field,  cov- 
ered at  the  time  with  a  growth  of  highly  inflammable  veg- 
etation, and  travels  before  a  high  wind  in  a  direction  away 
from  the  track,  is  sufficient  to  warrant  a  jury  in  finding 
that  the  fire  was  caused  by  the  operation  of  the  railroad, 
without  its  appearing  that  the  engine  emitted  sparks  or 
live  cinders,  or  was  put  to  special  exertion,  and  without 
further  proof  excluding  other  possible  origins. — Kansas 
City,  Ft.  S.  &  M.  R.  Co.  v.  Perry,  65  Kan.  792,  70  P.  870. 
New  Mexico.  The  words,  "prima  facie  evidence  of  title," 
mean  evidence  sufficient  to  establish  title  unless  some 
person  shows  a  better  title. — Bell  v.  Skillicorn,  6  N.  M. 
399,  28  P.  768. 

Oregon.  Prima  facie  evidence  is  that  degree  of  proof 
which,  unexplained  or  uncontradicted,  is  alone  sufficient 
to  establish  the  truth  of  a  legal  principle  asserted  by  a 
jjarty.— State  v.  Kline,  50  Or.  426,  93  P.  237. 


DEFINITION  OP  TERMS  13 

Primary   Evidence. 

[This  term  is  sometimes  used  in  the  sense  of  prima  facie 
evidence,  as  in  Cross  v.  Baskett,  17  Or.  84,  21  P.  47, 
where  it  is  stated  that  primary  evidence  is  that  which 
suffices  for  the  proof  of  a  particular  fact  until  contradicted 
or  overcome  by  other  evidence;  but  in  its  ordinary  signifi- 
cation it  is  used  as  synonymous  with  "Best  Evidence," 
quid  vide.] 

Secondary    Evidence. 

[Secondary  evidence  is  the  correlative  of  "best"  or  "pri- 
mary" evidence,  and  in  the  usual  acceptation  of  the  term 
means  the  proving  of  the  terms  of  a  document  by  oral 
testimony  as  to  its  contents,  when  the  document  itself 
is  not  available.  This  subject  is  taken  up  at  length  in 
Chapter  IX.] 

Evidence  Wrongfully  Obtained. 
California.  The  fact  that  an  original  judgment  roll  of 
a  case  tried  in  another  county  was  illegally  taken  from 
the  proper  office  does  not  affect  its  competency  as  evi- 
dence.—People  v.  Alden,  113  Cal.  264,  45  P.  327. 
Nebraska.  When  papers  or  letters  are  offered  in  evidence 
on  the  trial  of  a  case  which  are  pertinent  to  the  issue 
they  should  be  admitted;  the  court  will  not  take  notice 
how  they  were  obtained,  nor  will  it  form  a  collateral  issue 
to  determine  that  question. — Sanford  v.  Sornborger,  26 
Neb.  295,  41  N.  W.  1102. 

United  States.  Proof  that  some  letters  offered  in  evidence 
were  obtained  by  robbing  the  United  States  mail  would 
not  be  relevant  on  a  charge  of  conspiracy  to  defraud  the 
United  States.— Hyde  v.  United  States,  225  U.  S.  347,  32 
S.  Ct.  793,  56  L.  Ed.  1114. 

Legislative  Power  to  Change  Rule  of  Evidence. 
There  is  no  vested  right  in  a  rule  of  evidence. — Jones 
v.  Hickey,  80  Kan.  109,  102  P.  247;  Broadie  v.  Carson,  81 
Kan.  467,  106  P.  294.  (Statute  declaring  what  should  con- 
stitute a  prima  facie  showing  of  legal  service  of  notice 
of  default  in  purchase  of  school  lands.)  Boise  City  Irri- 
gation &  Land  Co.  v.  Stewart,  10  Ida.  38,  77  P.  225.  (Pro- 
viding that  certain  maps  and  plats  should  be  accepted  as 
evidence  on  the  trial  of  actions  to  establish  rights  to  the 
use  of  water.)     Wheelock  v.  Myers,  64  Kan.  47,  67  P.  632; 


14  DEFINITION  OP  TERMS 

Little  Rock  &  Ft.  S.  R.  Co.  v.  Payne,  33  Ark.  816,  34  Am. 
Rep.  55;  Parke  v.  Williams,  7  Cal.  247. 
Nebraska.  The  legislature  has  no  power  to  establish 
rules  which,  under  pretense  of  regulating  evidence,  alto- 
gether prohibit  a  party  from  exhibiting  his  rights.— Larson 
v.  Dickey,  39  Neb.  463,  58  N.  W.  167. 

North  Dakota.  Statute  requiring  no  proof  of  corporate 
existence  unless  such  existence  was  denied  under  oath, 
applies  to  case  where  answer  was  filed  before  law  went 
into  effect.— First  Meth.  Episcopal  Church  v.  Fadden,  8 
N.  D.  162,  77  N.  W.  615. 

Oregon.  The  rule  which  imposes  upon  a  defendant  the 
burden  of  proof  in  a  prosecution  for  a  statutory  crime  does 
not  violate  any  vested  right  which  he  possesses. — State  v. 
Kline,  50  Or.  426,  93  P.  237. 

Texas.  A  statute  removing  the  incompetency  of  a  witness 
to  testify,  such  as  permitting  a  seduced  woman  to  testify, 
relates  to  a  mode  of  procedure  only,  in  which  no  one  can 
have  a  vested  right,  and  applies  to  an  act  committed  be- 
fore the  statute  went  into  effect. — Mrous  v.  State,  31  Tex. 
Cr.  R.  597,  21  S.  W.  764. 

A  statute  providing  that  after  an  instrument  shall  have 
been  recorded  for  ten  years  it  shall  be  admitted  in  evi- 
dence, whether  or  not  proved  or  acknowledged  in  the 
manner  required  by  statute,  does  not  violate  any  consti- 
tutional right  of  those  who  acquired  rights  before  the 
act  took  effect. — Ariola  v.  Newman,  51  Tex.  Civ.  App.  617, 
113  S.  W.  157;  Harvey  v.  Gartin,  51  Tex.  Civ.  App.  577, 
113  S.  W.  166. 

Nor  does  it  apply  to  suits  begun  prior  thereto. — Sims  v. 
Sealy,  53  Tex.  Civ." App.  518,  116  S.  W.  630. 

Proof. 

California.  Proof  is  the  establishment  of  a  fact  by  evi- 
dence.— People  v.  Bowers   (Cal.),  18  P.  660,  665. 

There  is  an  obvious  difference  between  the  words  "evi- 
dence" and  "proof."  The  former,  in  legal  acceptation,  in- 
cludes the  means  by  which  any  alleged  matter  of  fact,  the 
truth  of  which  is  submitted  to  investigation,  is  established 
or  disproved.  The  latter  is  the  effect  or  result  of  evi- 
dence.— Schloss  v.  His  Creditors,  31  Cal.  201. 


DEFINITION   OF   TERMS  15 

"Conclusive  Proof"  means  evidence  upon  the 
production  of  which,  or  a  fact  upon  the  proof  of 
which,  the  judge  is  bound  by  law  to  regard  some 
fact  as  proved,  and  to  exclude  evidence  intended 
to  disprove  it. 

California.  Conclusive  evidence  is  defined  by  statute  as 
that  which  the  law  does  not  permit  to  be  contradicted. — 
Payne  v.  Ward,  23  Cal.  App.  492,  138  P.  967. 

"A  Presumption"  means  a  rule  of  law  that 
courts  and  judges  shall  draw  a  particular  infer- 
ence from  a  particular  fact,  or  from  particular 
evidence,  unless  and  until  the  truth  of  such  infer- 
ence is  disproved. 

Kansas.  The  presumption  of  innocence  has  the  effect  of 
evidence,  in  that  it  rebuts  the  evidence  of  guilt  up  to  the 
point  that  the  latter,  notwithstanding  the  presumption, 
convinces  the  jury  beyond  a  reasonable  doubt  of  the  truth 
of  the  charge;  but  yet  it  is  only  a  presumption,  and  not 
evidence.— State  v.  Reilly.  S5  Kan.  175,  116  P.  481. 
Nebraska.  A  presumption  means  a  rule  of  law  that  courts 
and  judges  shall  draw  a  particular  inference  from  a  par- 
ticular fact  or  from  particular  evidence,  unless  and  until 
the  truth  of  such  inference  be  disproved. — First  Nat.  Bank 
of  Elgin  v.  Adams,  (Neb.),  118  N.  W.  1055. 
New  Mexico.  An  inference  is  nothing  more  than  a  per- 
missible deduction  from  the  evidence,  while  a  presumption 
is  compulsory  and  cannot  be  disregarded  by  the  jury. — 
Territory  v.  Lucero.  16  N.  M.  652,  120  P.  304. 
Oklahoma.  A  presumption  is  a  conclusion  drawn  from 
the  proof  of  facts  or  circumstances,  and  stands  as  estab- 
lishing facts  until  overcome  by  contrary  proof. — Johnson 
v.  Territory,  5  Okla.  695,  50  P.  90. 

Oregon.  A  presumption  may,  under  the  wording  of  the 
statute,  be  defined  as  evidence. — Caraduc  v.  Schanen-Blair 
Co.,  66  Or.  310,  133  P.  636. 


16  DEFINITION   OF   TERMS 

A  presumption  is  a  species  of  evidence,  to  be  weighed 
with  other  evidence  by  the  jury.— Ward  v.  Queen  City  Fire 
Ins.  Co.,  69  Or.  347,  138  P.  1067. 

A  presumption  is  by  statute  declared  to  be  a  deduction 
which  the  law  expressly  directs  to  be  made  from  particu- 
lar facts. — Ward  v.  Queen  City  Fire  Ins.  Co.,  69  Or.  347, 
138  P.   1067.  \ 

South  Dakota.  A  presumption  is  not  generally  regarded 
as  evidence  to  be  placed  in  the  balance  and  weighed,  but 
only  a  rule  of  law  as  to  which  party  shall  first  proceed 
and  go  forward  with  the  evidence  to  prove  the  issue. — 
Rock  Island  Plow  Co.  v.  Balderson,  26  S.  D.  399,  128  N.  W. 
482. 

[The  subject  of  presumptions  is  taken  up  at  length  in 
Ch.  XIV.     See,  also,  4  Wigmore  Ev.,  §  2490.] 

The  expression,  "facts  in  issue,"  means — 

(1)  All  facts  which,  by  the  form  of  the  plead- 
ings in  any  action,  are  affirmed  on  one  side  and 
denied  on  the  other; 

(2)  In  actions  in  which  there  are  no  pleadings, 
or  in  which  the  form  of  the  pleadings  is  such  that 
distinct  issues  are  not  joined  between  the  parties, 
all  facts  from  the  establishment  of  which  the  ex- 
istence, nonexistence,  nature,  or  extent  of  any 
right,  liability,  or  disability  asserted  or  denied  in 
any  such  case  would  by  law  follow. 

A  fact  in  issue  is  distinguished  from  a  fact  in  contro- 
versy, in  that  the  former  must  be  a  fact  immediately 
found,  according  to  the  pleadings,  while  the  latter  is  that 
on  which  the  verdict  is  merely  based. — Caperton  v. 
Schmidt.  26  Cal.  479,  494;  Glenn  v.  Savage,  14  Or.  567, 
573,  13  P.  442,  446;  Applegate  v.  Dowell,  15  Or.  513,  16 
P.  651,  657. 

A  fact  or  matter  in  issue  is  that  upon  which  the  plaintiff 
proceeds  by  his  action,  and  which  the  defendant  contro- 
verts in  his  pleadings. — Garwood  v.  Garwood,  29  Cal.  514, 
521;  Lillis  v.  Emigrant  Ditch  Co.,  17  Nev.  337,  30  P.  1108, 
lTTO;   Glenn  v.  Savage,  14  Or.  567,  13  P.  442,  446. 


DEFINITION   OF  TERMS  17 

Texas.  Facts  in  issue  are  those  facts  upon  the  truth  or 
existence  of  which  the  right  or  liability  to  be  ascertained 
in  the  proceeding  depends. — San  Antonio  Traction  Co.  v. 
Higdon.   (Tex.  Civ.  App.),  123  S.  W.  732. 

The  word  "relevant"  means  that  any  two  facts 
to  which  it  is  applied  are  so  related  to  each  other 
that  according  to  the  common  course  of  events 
one  either  taken  by  itself  or  in  connection  with 
other  facts  proves  or  renders  probable  the  past, 
present,  or  future  existence  or  nonexistence  of 
the  other. 

["The  modern  system  of  evidence  rests  upon  two  axi- 
oms: 1.  None  but  facts  having  rational  probative  value 
are  admissible.  2.  All  facts  having  rational  probative 
value  are  admissible,  unless  some  specific  rule  forbids." — 
1    Wigmore    Ev.,    §§    9,    10.] 

California.  Upon  a  charge  of  abduction,  that  the  girl  pre- 
viously had  been  unchaste  is  irrelevant. — People  v.  De- 
mousset,  71  Cal.  611,  12  P.  788;  People  v.  Dolan,  96  Cal. 
315,  31  P.  107. 

Kansas.  That  a  third  person  is  beneficially  interested  in 
the  proceeds  of  a  note  in  suit  is  immaterial. — Stanley  v. 
Penny,  75  Kan.  179,  88  P.  875. 

Nebraska.  If  the  evidence  relative  to  a  material  fact  is 
conflicting  any  collateral  fact  or  circumstance  tending,  in 
a  reasonable  degree,  to  establish  the  probability  or  Im- 
probability of  the  disputed  fact  is  relevant  and  properly 
admitted,  although  it  may  not  tend  directly  to  prove  any 
issue  in  the  case. — Landifl  &  Schick  v.  Watts,  82  Neb.  359, 
117  N.  W.  705;  Shepherd  v.  Lincoln  Traction  Co.,  79  Neb. 
834,   113  N.  W.   627. 

Nevada.  To  ascertain  whether  evidence  is  relevant  or 
not  it  is  only  necessary  to  determine  whether  it  has  a 
tendency  to  establish  a  legitimate  case  or  defense  relied 
on. — State  v.  Rhoades,  6  Nev.  352. 

Knowledge  of  the  condition  of  a  brush  fence  at  the  time 
of  trial  was  not  a  fact  from   which  the  jury  could  infer 


18  DEFINITION  OF  TERMS 

its  condition  29  months  before. — Ferraris  v.  Kyle,  19  Nev. 
435,  14  P.  529. 

Texas.  Evidence  irrelevant  to  the  avowed  purpose  for 
which  it  is  offered  is  not  admissible. — Leach  v.  Millard,  9 
Tex.   551. 

The  question  being  whether  certain  street  lights  shone 
on  a  place  where  plaintiff  fell  over  an  obstruction,  the 
fact  that  they  shone  on  the  same  place  eighteen  months 
after  the  accident  is  relevant. — Ware  v.  Shafer,  (Tex. 
Civ.  App.),  27  S.  W.  764. 

As  a  general  rule  it  is  not  the  province  of  the  court* 
to  pass  upon  the  sufficiency  of  evidence  to  prove  a  par- 
ticular issue.  If  testimony  is  offered  which  tends  to  prove 
such  issue,  it  is  admissible,  and  its  sufficiency  or  proba- 
tive effect  becomes  a  question  for  the  jury  to  pass  upon. 
—Hammond  v.  Hammond,  43  Tex.  Civ.  App.  284,  94  S. 
W.  1067. 

In  an  action  for  personal  injuries,  evidence  that  plain- 
tiff was  prosecuting  the  suit  on  a  pauper's  affidavit  and 
that  his  son-in-law  had  refused  to  go  on  his  bond  for 
costs,  is  irrelevant. — Hardin  v.  Ft.  Worth  &  D.  C.  Ry.  Co., 
49  Tex.  Civ.  App.  184,  10S   S.  W.  490. 

Relevant  testimony  is  that  which  directly  touches  upon 
the  issue  which  the  parties  have  made  by  their  pleadings. 
— San  Antonio  Traction  Co.  v.  Higdon,  (Tex.  Civ.  App.), 
123  S.  W.  732. 

The  meaning  of  "relevant,"  as  applied  to  testimony,  is 
that  it  directly  touches  upon  the  issues,  though  it  be  but 
a  link  in  the  chain  of  evidence. — San  Antonio  Traction  Co. 
v.  Higdon,  (Tex.  Civ.  App.),  123  S.  W.  732. 

To  determine  relevancy  the  pleadings  must  first  be 
looked  to  to  ascertain  the  issues. — San  Antonio  Traction 
Co.  y.  Higdon,   (Tex.  Civ.  App.),  123  S.  W.  732. 

Relevancy  is  defined  to  be  that  which  conduces  to  the 
proof  of  a  pertinent  hypothesis,  a  pertinent  hypothesis 
being  one  which  if  sustained  would  logically  influence  the 
issue.  Hence  it  is  relevant  to  put  in  evidence  any  circum- 
stance which  tends  to  make  the  proposition  at  issue  more 
or  less  probable,  and  whatever  is  a  condition  either  of  the 
existence  or  nonexistence  of  a  relevant  hypothesis  may  be 
shown;   but  no  circumstance  is  relevant  which  does  not 


DEFINITION  OF  TERMS  19 

make  more  or  less  probable  tbe  proposition  at  issue. — 
Belcber  v.  State,  71  Tex.  Cr.  R.  646,  161  S.  W.  459;  Lane 
v.  State,  73  Tex.  Cr.  R.  266,  164  S.  W.  378. 

NOTE    I. 
(To  Article  1.) 

The  definitions  are  simply  explanations  of  the  senses  in 
which  the  words  defined  are  used  in  this  work.  They  will  be 
found,  however,  if  read  in  connection  with  my  "Introduction 
to  the  Indian  Evidence  Act,"  to  explain  the  manner  in  which 
it    is   arranged. 

I  use  the  word  "presumption"  in  the  sense  of  a  presump- 
tion of  law  capable  of  being  rebutted.  A  presumption  of 
fact  is  simply  an  argument.  A  conclusive  presumption  I 
describe  as  conclusive  proof.  Hence  the  few  presumptions 
of  law  which  I  have  thought  it  necessary  to  notice  are  the 
only  ones   I  have  to   deal  with. 

In  earlier  editions  of  this  work  I  gave  the  following 
definition  of   relevancy: 

"Facts,  whether  in  issue  or  not,  are  relevant  to  each 
other  when  one  is,  or  probably  may  be,  or  probably  may 
have  been — 

the  cause   of  the   other; 

the   effect  of   the  other; 

an  effect  of  the  same  cause; 

a   cause   of  the   same   effect; 
or  when  the  one  shows  that  the  other  must  or  cannot  have 
occurred,  or  probably  does  or  did  exist,  or  not; 

or  that  any  fact  does  or  did  exist,  or  not,  which  in  the 
common  course  of  events  would  either  have  caused  or  have 
been   caused  by   the  other; 

provided  that  such  facts  do  not  fall  within  the  exclusive 
rules  contained  in  Chapters  III,  IV,  V,  VI;  or  that  they  do 
fall  within  the  exceptions  to  those  rules  contained  in  those 
chapters." 

This  is  taken  (with  some  verbal  alterations)  from  a 
pamphlet  called  "The  Theory  of  Relevancy  for  the  Purpose 
of  Judicial  Evidence,  by  George  Clifford  Whitworth,  Bombay 
Civil  Service.     Bombay,  1875." 

The  7th  section  of  the  Indian  Evidence  Act  is  as  follows: 
"Facts  which  are  the  occasion,  cause,  or  effect,  immediate 
or  otherwise,  of  relevant  facts  or  facts  in  issue,  or  which 
constitute  the  state  of  things  under  which  they  happened, 
or  which  afforded  an  opportunity  for  their  occurrence  or 
transaction,    are    relevant." 

The    11th    section    is   as    follows: 

"Facts  not  otherwise  relevant  are  relevant; 
"(1)   If  they  are   inconsistent  with  any  fact  in   Issue  or 
relevant  fact; 


20  DEFINITION  OP  TERMS 

"(2)  If  by  themselves,  or  in  connection  with  other  facts, 
they  make  the  existence  or  nonexistence  of  any  fact  in 
issue,  or  relevant  fact,  highly  probable  or  improbable." 

In  my  "Introduction  to  the  Indian  Evidence  Act,"  I  ex- 
amined at  length  the  theory  of  judicial  evidence,  and  tried 
to  show  that  the  theory  of  relevancy  is  only  a  particular 
case  of  the  process  of  induction,  and  that  it  depends  on  the 
connection  of  events  as  cause  and  effect.  This  theory  does 
not  greatly  differ  from  Bentham's,  though  he  does  not  seem 
to  me  to  have  grasped  it  as  distinctly  as  if  he  had  lived  to 
study  Mr.   Mill's   Inductive  Logic. 

My  theory  was  expressed  too  widely  in  certain  parts 
and  not  widely  enough  in  others,  and  Mr.  Whitworth's  pamph- 
let appears  to  me  to  have  corrected  and  completed  it  in  a 
judicious  manner.  I  accordingly  embodied  his  definition  of 
relevancy,  with  some  variations  and  additions,  in  the  text 
of  the  first  edition.  The  necessity  of  limiting  in  some  such 
way  the  terms  erf  the  11th  section  of  the  Indian  Evidence  Act 
may  be  inferred'  from  a  judgment  by  Mr.  Justice  West  (of 
the  High  Court  of  Bombay),  in  the  case  of  R.  v.  Parbhudas 
and  Others,  printed  in  the  "Law  Journal,"  May  27,  1876.  I 
have  substituted  the  present  definition  for  it,  not  because  I 
think  it  is  wrong,  but  because  I  think  it  gives  rather  the 
principle  upon  which  the  rule  depends  than  a  convenient 
practical   rule. 

As  to  the  coincidence  of  this  theory  with  the  English  law 
I  can  only  say  that  it  will  be  found  to  supply  a  key  which 
will  explain  all  that  is  said  on  the  subject  of  circumstantial 
evidence  by  the  writers  who  have  treated  of  that  subject. 
Mr.  Whitworth  goes  through  the  evidence  given  against  the 
German,  Muller,  executed  for  murdering  Mr.  Briggs  on  the 
North  London  Railway,  and  shows  how  each  item  of  it  can 
be  referred  to  one  or  the  other  of  the  heads  of  relevancy 
which  he  discusses. 

The  theory  of  relevancy  thus  expressed  would,  I  believe, 
suffice  to  solve  every  question  which  can  arise  upon  the  sub- 
ject, but  the  legal  rules,  based  upon  an  unconscious  appre- 
hension of  the  theory,  exceed  it  at  some  points  and  fall 
short  of  it  at  others. 


FACTS  IN  ISSUE  21 

CHAPTER  II. 

OF  FACTS  IN  ISSUE  AND  RELEVANT  TO  THE  ISSUE. 

Article  2* 

facts  in  issue  and  facts  relevant  to  the  issue 
may  be  pboved. 

Evidence  may  be  given  in  any  proceeding  of 
any  fact  in  issue, 

and  of  any  fact  relevant  to  any  fact  in  issue, 
unless  it  is  hereinafter  declared  to  be  deemed  to 
be  irrelevant, 

and  of  any  fact  hereinafter  declared  to  be 
deemed  to  be  relevant  to  the  issue,  whether  it  is 
or  is  not  relevant  thereto,  (a) 

Provided  that  the  judge  may  exclude  evidence 
of  facts  which,  though  relevant  or  deemed  to  be 
relevant  to  the  issue,  appear  to  him  too  remote  to 
be  material  under  all  the  circumstances  of  the 
case. 


Illustrations. 

(a)  A  is  indicted  for  the  murder  of  B,  and  pleads  not 
guilty. 

The  following  facts  may  be  in  issue:  The  fact  that  A 
killed  B;  the  fact  that  at  the  time  when  A  killed  B  he  was 
prevented  by  disease  from  knowing  right  from  wrong;  the 
fact  that  A  had  received  from  B  such  provocation  as  would 
reduce    his    offense    to    manslaughter. — 1 


*  See  Note  at  end  of  Article. 


22  FACTS  IN  ISSUE 

The  fact  that  A  was  at  a  distant  place  at  the  time  of  the 
murder  would  be  relevant  to  the  issue;  the  fact  that  A  had  a 
good  character  would  be  deemed  to  be  relevant;  the  fact 
that  C  on  his  deathbed  declared  that  C,  and  not  A,  murdered 
B,  would  be  deemed  not  to  be  relevant. — 2 

(b)  [There  being  an  issue  as  to  whether  a  business  was 
conducted  by  deceased  for  himself  and  in  his  own  name,  evi- 
dence showing  that  goods  were  sold  to  him  in  his  own  name, 
together    with    bills    therefor,    was    admissible.] — 3 

(c)  [The  question  was,  whether  defendant  bound  himself 
to  pay  another's  debt  to  plaintiff.  The  fact  that  plaintiff 
thereafter  was  trying  to  negotiate  a  settlement  with  the 
debtor  is  admissible.] — 4 

(d)  [The  question  was,  whether  a  certain  person  was  the 
owner  of  a  shipment  of  cattle  upon  which  a  levy  had  been 
made.  Evidence  as  to  the  persons  paying  the  purchase  price 
of  the  cattle  is  relevant.] — 5 

(e)  [The  question  was,  whether  deceased  or  defendant  had 
been  the  aggressor  during  the  day  of  the  homicide,  when  it 
appeared  that  their  conduct  had  been  rough  and  irritating 
towards  each  other.  Proof  of  bruises  on  the  body  of  de- 
ceased, found  upon  exhumation  soon  after  burial,  is  rele- 
vant.]— 6 

(f)  [The  question  was  what  the  speed  of  an  automobile 
was  at  the  place  of  collision  with  a  bicyclist.  Testimony  as 
to  the  speed  at  which  it  was  going  when  100  feet  away, 
just    prior    to    the   accident,    is   relevant.] — 7 

(g)  [The  question  was,  whether  plaintiffs'  ancestor  ex- 
ecuted a  certain  deed. 

Whether  he  afterwards  set  up  claim  to  the  property,  paid 
taxes  or  assessments,  or  did  any  other  act  asserting  owner- 
ship, were  relevant.] — 8 

(a)  [It  is  hard  to  perceive  that  any  fact  may  be  "deemed 
to  be  relevant,"  unless  it  has  some  logical  tendency  to  prove 
another  fact;  but  it  is  clear  that  facts  may  be  "deemed  to  be 
irrelevant,"  as  the  expression  is  used  in  this  and  following 
articles,  though,  as  a  matter  of  fact,  they  are  logically  rele- 
vant, such  as  privileged  communications  and  other  matters 
excluded  on  the  ground  of  policy.] 

2  [The  fact  that  A  had  a  bad  character  would  be  deemed 
to    be    irrelevant.     See   Articles    56,    57.] 

3  [Kelly  v.  Murphy,   70  Cal.   560,   12  P.   467.] 

4  [Cross  v.  Kistler,   14   Colo.    571,    23   P.    903.] 

5  [Paddock  v.  Sam  Gosney  Live  Stock  Com.  Co.,  48  Neb. 
176,   66   N.   W.   1121.] 

6  [Billings  v.   State,   52  Ark.  303,  12  S.  W.  574.] 

7  [Olsen   v.   Levy,    8    Cal.   App.    487,    97   P.    76.] 

8  [Haight  v.  Vallet,  89  Cal.  245,  26  P.  897.] 


FACTS  IN  ISSUE  23 


(h)  [The  question  was,  whether  A  committed  a  certain 
crime.  Testimony  as  to  footprints  found  in  a  cornfield, 
where  it  was  alleged  the  crime  occurred,  was  excluded,  when 
it  was  not  shown  that  the  footprints  were  made  by  defend- 
ant, or  corresponded  with  shoes  worn  by  him,  but  merely 
that  the  footprints  led  in  the  direction  of  his  home.] — 9 

(i)  [The  question  was,  whether  cattle  of  plaintiff  were 
injured  by  rough  handling  of  the  railroad  company.  That 
other  cattle  in  the  same  shipment  were  killed  is  admis- 
sible.]—10 

(j)  [The  question  being  whether  a  collision  was  severe 
enough  to  throw  a  brakeman  some  25  feet  from  the  rear 
platform  into  the  car.  That  no  other  persons  in  the  same 
coach  were  injured,  and  what  effect  the  collision  had  on 
them   are    relevant.] — 11 

(k)  [The  question  was,  whether  a  passenger  was  justified 
in  going  upon  the  platform  of  a  train  which  was  running 
down  a  grade  at  a  claimed  unusual  rate  of  speed,  with  in- 
tention of  jumping  into  sand  at  the  side  of  the  track,  if  nec- 
essary. Evidence  as  to  the  conduct  of  passengers  remaining 
in  the  car,  and  whether  any  of  them  were  injured  is  rele- 
vant.]— 12 

RELEVANCY   IN    GENERAL. 

Evidence  to  prove  collateral  facts  is  irrelevant. — State 
v.  Dunn,  53  Or.  304,  100  P.  258;  Missouri,  K.  &  T.  Ry.  Co. 
v.  Bailey,  53  Tex.  Civ.  App.  295,  115  S.  W.  601. 
Arkansas.  In  a  prosecution  for  homicide  evidence  of  a 
difficulty  taking  place  at  a  picnic  about  two  and  a  half 
years  before,  wherein  defendant  struck  at  deceased  with 
a  knife,  was  too  remote  to  show  malice. — Billings  v. 
State,  52  Ark.  303,  12  S.  W.  574. 

In  a  prosecution  for  attempt  to  kill  by  putting  poison 
in  liquor,  where  defendant  denied  she  put  any  poison  or 
compound  in  the  beer  or  whiskey  in  question,  testimony 
as  to  reputation  as  a  "voodoo"  doctor  of  a  person  who 
was  alleged  to  have  given  certain  magical  tablets  to  de- 
fendant is  inadmissible. — Emmons  v.  State,  (Ark.),  160 
S.  W.  219. 

9  [Kinnan  v.    State,   86  Neb.   234,   125   N.  W.   594.] 

10  [Ft.  Worth  &  R.  G.  Ry.  Co.  v.  Montgomery.  (Tex.  Olv. 
App.),  141  S.  W.   813.] 

li  [Guir.  C.  &  s.  P.  Ry,  <■■-.  v.  Dooley,  (Tex.  Civ.  App).  131 
S.  W.  831.] 

12    [Mitchell    v.    Southern    Pac.   Co.,    87    Cal.    62,    25   P.    245.] 


24  FACTS  IN  ISSUE 

California.  Under  the  head  of  relevancy,  the  question  is 
not  as  to  the  weight  of  the  evidence,  but  whether.it  tends 
at  all  to  illustrate  the  issue.  (Whether  plaintiff  in  malic- 
ious prosecution  threw  a  brickbat  through  a  window  at 
defendant  who  arrested  her.  That  her  husband  had  made 
threats  against  defendant  erroneously  excluded). — Lyon 
v.  Hancock,  35  Cal.  376. 

Evidence  of  the  pecuniary  standing  and  ability  of  a 
person  is  competent  on  an  issue  as  to  whether  he  is  in 
equity  the  owner  of  the  land  the  title  to  which  has  been 
taken  in  his  name. — Hobbs  v.  Duff,  43  Cal.  485. 

Evidence  as  to  property  pledged  as  collateral  security 
for  a  note  relevant  in  an  action  on  the  note. — First  Nat. 
Bank  v.  Wolff,  79  Cal.  69,  21  P.  552. 

Where  the  subject  of  controversy  arose  over  the  break- 
ing of  a  wood  dam  through  decayed  timbers,  evidence  as 
to  witness'  familiarity  with  earth  dams,  and  how  such 
dams  might  break,  is  irrelevant. — Wiedekind  v.  Tuolumne 
County  Water  Co.,  83  Cal.  198,  23  P.  311. 

A  letter  respecting  a  sale  of  land,  sent  by  a  vendor  to 
his  attorney,  is  inadmissible  in  an  action  to  enforce  a 
contract  for  a  sale. — Niles  v.  Hancock,  140  Cal.  157,  73 
P.  840. 

On  charge  of  dynamiting  a  house,  evidence  as  to  obscene 
writings  and  letters  of  defendant,  in  no  way  relating  to 
the  crime  is  inadmissible.— People  v.  Martin,  13  Cal.  App. 
96,  108  P.  1034.  Nor  the  fact  that  when  arrested  ten  months 
after  the  crime  she  had  in  possession  various  poisons, 
none  of  which  had  any  connection  with  the  crime  charged. 
—Id. 

Evidence  will  not  be  excluded  because  of  its  having  lit- 
tle weight.— People  v.  Wong  Chuey,  117  Cal.  624,  49  P.  833; 
People  v.  Cuff,  122  Cal.  589,  55  P.  407. 

The  question  whether  or  not  deceased  was  an  Anglo- 
Saxon  is  immaterial  on  a  trial  for  his  murder. — People  v. 
Lopez,  21  Cal.  App.  188,  131  P.  104. 

Colorado.  In  an  action  to  cancel  certain  instruments  al- 
leged to  have  been  procured  from  plaintiff  while  under 
duress,  testimony  that  immediately  after  the  execution  of 
the  instruments  plaintiff  was  confined  to  his  bed  because 
of  a  shock  to  his  nervous  system  was  admissible  as  tend- 


PACTS  IN  ISSUE  25 

ing  to  show  his  mental  condition  immediately  after  the 
transaction.— McClelland  v.  Bullis,  34  Colo.  69,  81  P.  771. 

The  question  is,  whether  testator  had  been  of  sound 
mind  and  memory  for  several  years  prior  to  signing  his 
will,  and  was  not  competent  to  care  for  or  preserve  his 
property.  Letters  written  by  him  during  that  time  are 
relevant.— Burnham  v.  Grant,  24  Colo.  App.  131,  134  P.  254. 
Idaho.  It  is  not  error  to  admit  evidence  tending  to  estab- 
lish a  material  issue  made  by  the  pleadings. — Stuart  v. 
Noble  Ditch  Co.,  9  Idaho  765,  76  P.  355. 

In  an  action  to  recover  an  alleged  balance  due  on  a 
promissory  note,  where  plaintiff  introduced  a  copy  of  an 
account  as  a  statement  of  the  account  as  it  appeared  on 
its  books,  showing  a  balance  due  as  charged  in  the  com- 
plaint, notes  and  receipts  bearing  on  the  correctness  of 
the  account  and  having  some  reference  to  a  copy  of  the 
book  account  were  admissible  on  the  part  of  defendant. — 
Vollmer  Clearwater  Co.  v.  Rogers,  13  Idaho  564,  92  P.  579. 

Kansas.  The  defendant  had  sown  and  harvested  the  oats 
on  land  of  which  he  had  been  in  possession  for  several 
years.  In  replevin  for  certain  shocks  of  oats,  plaintiff 
could  not  introduce  title  papers  to  show  that  he  was  the 
owner  of  the  land. — Caldwell  v.  Custard,  8  Kan.  303. 

It  is  not  error  for  a  trial  court  to  refuse  to  admit  proof 
of  a  fact  which  does  not  tend  to  prove  or  disprove  any 
matter  in  controversy. — Neosho  Valley  Inv.  Co.  v.  Han- 
nura,  63  Kan.  621,  66  P.  631. 

Nebraska.  The  competency  of  a  collateral  fact  is  not  to 
be  determined  by  the  conclusiveness  of  the  inference  it 
may  furnish  with  reference  to  a  litigated  fact,  but  by  the 
proposition  that,  if  it  tends  in  a  slight  degree  to  eluci- 
date the  inquiry  or  to  reasonably  assist  in  a  determination 
probably  founded  on  truth,  it  should  be  received. — Fitch 
v.  Martin,  84  Neb.  745,  122  N.  W.  50. 

Nevada.  To  ascertain  whether  evidence  is  relevant  or 
not,  it  is  only  necessary  to  determine  whether  it  has  a 
tendency  to  establish  a  legitimate  case  or  defense  relied 
upon. — State  v.  Rhoades,  6  Nev.  352. 

New  Mexico.  Evidence  of  the  defective  condition  of 
street  car  seven  months  prior  by  reason  of  which  plain- 


26  PACTS  IN  ISSUE 

tiff  was  injured  not  too  remote. — Corcoran  v.  Albuquerque 
Traction  Co.,  15  N.  M.  9,  103  P.  645. 

Oklahoma.  Evidence  offered  by  plaintiff  wbich  does  not 
support  any  issue  made  by  the  pleadings  should  be  ex- 
cluded.— Indian  Land  &  Trust  Co.  v.  Clement,  22  Okla. 
40,  109  P.  1089. 

Oregon.  On  a  trial  for  murder,  the  statement  of  a  third 
person,  alleged  to  have  been  made  to  his  father  a  few 
hours  after  the  murder,  that  he  had  come  to  see  him 
(the  father)  for  the  last  time,  because  he  had  killed  de- 
ceased, is  inadmissible. — State  v.  Fletcher,  24  Or.  295,  33 
P.  575. 

Where  it  appeared  that  but  two  men  besides  the  de- 
fendant lived  at  the  same  place  and  that  both  of  them 
had  retired  before  12  o'clock,  evidence  that  someone  was 
seen  to  enter  the  house  about  that  time  was  competent 
as  tending  to  show  when  defendant  reached  home. — State 
v.  McDaniel,  39  Or.  161,  65  P.  520. 

South  Dakota.  Photographs  taken  at  points  not  material 
to  the  controversy  are  not  admissible. — Whaley  v.  Vidal, 

27  S.  D.  642,  132  N.  W.  248. 

Texas.  A  fact  is  admissible  in  evidence,  though  it  would 
not  prove  the  whole  issue,  but  only  lay  the  foundation  for 
the  introduction  of  other  testimony  pertinent  to  the  issue. 
An  order  of  a  court  to  sell  land  may  be  proved  as  intro- 
ductory to  the  proof  of  an  actual  sale  by  virtue  thereof. — 
Neill  v.  Keese,  5  Tex.  23. 

Any  fact  may  be  submitted  to  a  jury,  provided  it  can 
be  established  by  competent  means,  and  affords  any  fair 
inference  or  presumption  as  to  the  question  in  dispute. — 
Wells  v.  Fairbanks,   5  Tex.   582. 

The  rule  which  requires  the  evidence  to  be  strictly  con- 
fined to  the  point  at  issue  is  not  violated  by  evidence  of 
facts  which  happened  before  and  after  the  principal  trans- 
action, yet  which  have  a  direct  relation  to  the  main  sub- 
ject in  controversy.— Horton  v.  Reynolds,  8  Tex.  284. 

To  show  domicile,  a  written  application  of  defendant 
made,  a  few  days  before  suit,  for  admission  to  a  lodge,  is 
admissible. — Robertson  v.   Ephraim,   18  Tex.  118. 

Evidence  that  a  member  of  a  banking  firm,  who  is 
county  treasurer,  incorrectly  keeps  the  county  treasurer's 
books  does  not  tend  to  prove  that  an  employe    of    the 


FACTS  IN  ISSUE  27 

firm  incorrectly  keeps  its  books. — Beeraan  v.  Jester,  62 
Tex.  431. 

Where  it  appeared  in  evidence  that  the  engineer  of  a 
train  made  no  effort  to  stop  it  when  he  saw  plaintiff  on 
the  track,  150  feet  distant,  his  testimony  that  it  would 
have  been  impossible  for  him  to  have  stopped  the  train 
after  he  saw  plaintiff  is  irrelevant. — Galveston,  H.  &  S.  A. 
Ry.  Co.  v.  Duelm,  7  Tex.  Civ.  App.  669,  23  S.  W.  596. 

A  copy  of  a  printed  form  of  contracts  usually  made  by 
defendant  could  be  used  in  evidence  in  a  suit  for  breach 
of  contract,  only  when  supplemented  by  proof  that  the 
contract  in  suit  was  upon  a  blank  of  that  kind. — D.  M. 
Osborne  &  Co.  v.  Ayers,  (Tex.  Civ.  App.),  32  S.  W.  73. 

Upon  the  question  of  the  measure  of  damages  sustained 
by  widow  and  minor  children  for  negligent  killing  of  de- 
ceased, the  fact  that  deceased  was  a  member  of  the  church 
and  did  not  use  profane  language  is  too  remote. — Lips- 
comb v.  Houston  &  T.  C.  Ry.  Co.,  95  Tex.  5,  64  S.  W.  923. 

Letters  of  a  person  not  a  party  to  the  suit,  sent  to  de- 
fendant, are  inadmissible. — Taylor  v.  McFatter,  (Tex.  Civ. 
App.),  109  S.  W.  395. 

Where  the  grade  and  quality  of  hay  is  in  issue,  testi- 
mony as  to  the  grade  and  quality  of  other  hay  purchased 
from  the  same  ricks  is  admissible. — Dixon  v.  Watson,  52 
Tex.  Civ.  App.  412,  115  S.  W.  100. 

It  is  permissible  to  prove  any  fact  that  is  relevant  to 
the  main  fact,  relevancy  in  such  sense  being  determined 
by  the  fact  that  men  would  ordinarily  infer  the  existence 
of  the  main  fact  from  the  existence  of  the  other  fact. — 
Dudley  v.  Strain,  (Tex.  Civ.  App.),  130  S.  W.  778. 

It  is  permissible  to  show  in  a  murder  trial  the  fact  that 
after  defendant  had  drawn  his  knife  a  bystander  called 
upon  deceased  to  run.  that  defendant  would  kill  her. — 
Pettis  v.  State,  68  Tex.  Cr.  R.  221,  150  S.  W.  794  . 

In  a  prosecution  for  incest,  testimony  of  a  witness  that 
she  had  stopped  visiting  the  home  of  defendant  because 
she  believed  that  one  H.  and  defendant's  wife  were  crim- 
inally intimate,  is  irrelevant,  neither  the  wife  nor  H.  being 
witnesses  in  the  case. — Drake  v.  State,  68  Tex.  Cr.  R. 
94,   151  S.  W.   315. 


28  FACTS  IN  ISSUE 

The  meaning  of  the  word  "relevant,"  as  applied  to  tes- 
timony, is  that  it  directly  touches  upon  the  issue  which 
the  parties  have  made  by  their  pleadings. — Wells  Fargo 
&  Co.  Express  v.  Gentry,  (Tex.  Civ.  App.),  154  S.  W.  363. 

Utah.  In  a  suit  to  recover  for  services  in  negotiating  the 
sale  of  a  mine,  evidence  that  plaintiff's  compensation  in 
his  regular  employment  was  suspended  during  the  nego- 
tiations is  irrelevant. — Firman  v.  Bateman,  2  Utah  268. 

The  fact  that  twenty-eight  head  of  cattle  other  than 
defendant's  of  a  herd  of  seventy  were  taken  at  the  same 
time  the  cow,  for  the  larceny  of  which  defendant  was 
arrested,  was  taken,  and  under  the  same  conditions  and 
circumstances,  and  in  the  same  transaction,  rendered  the 
defendant's  claim  of  mistake  less  probable,  and  tended  to 
show  guilty  knowledge,  and  is  admissible.- — State  v.  Gil- 
lies, 40  Utah  541,  123  P.  93. 

Washington.  On  a  question  of  forgery  of  a  note  the  fact 
that  the  maker  had  had  criminal  intercourse  with  the 
payee  and  her  husband  had  discovered  the  relations  and 
her  testimony  that  the  note  had  been  given  in  remuner- 
ation, was  relevant. — Crane  v.  Dexter,  H.  &  Co.,  5  Wash. 
479,  32  P.  223. 

Action  against  personal  representative  on  note  of  de- 
ceased, defense  non-execution.  Evidence  of  receipt  by  de- 
ceased several  years  prior  of  a  large  legacy  irrelevant. — 
Taylor  v.  Gale,  14  Wash.  57,  44  P.  110. 

Where  circumstantial  evidence  is  relied  on  to  connect 
a  defendant  with  a  crime,  much  must  be  left  to  the  dis- 
cretion of  the  trial  court  in  admitting  it.  It  is  not  neces- 
sary that  each  circumstance,  of  itself,  would  to  every  per- 
son appear  to  connect  the  defendant  with  the  offense.  It 
is  sufficient  if  such  circumstance,  considered  in  relation  to 
other  facts  and  circumstances  in  evidence,  may  fairly  tend 
to  such  result.— People  v.  Glass,  158  Cal.  650,  112  P.  290; 
State  v.  Leroy,  61  Wash.  405,  112  P.  638. 

Wyoming.  Evidence  may  be  relevant  and  admissible 
though  not  sufficient  in  itself  to  establish  the  fact  to  which 
it  relates. — Henderson  v.  Coleman,  19  Wyo.  183,  115  P. 
439,  450. 


RELEVANCY  OF  PACTS  29 

NOTE    II. 

(To    Article    2.) 

See  1  Ph.  Ev.,  493,  etc.;  Best,  ss.  Ill  and  251;  T.  E.,  chap, 
ii,   pt.    ii. 

For  instances  of  relevant  evidence  held  to  be  insufficient 
for  the  purpose  for  which  it  was  tendered  on  the  ground  of 
remoteness,  see  R.  v.  — ,  2  C.  and  P.,  459;  and  Mann  v.  Lang- 
ton,  3  A.  and  E.,   699. 

Mr.  Taylor  (s.  867)  adopts  from  Professor  Greenleaf  the 
statement  that  "the  law  excludes  on  public  grounds 
evidence  which  is  indecent  or  offensive  to  public  morals,  or 
injurious  to  the  feelings  of  third  persons."  The  authorities 
given  for  this  are  actions  on  wagers  which  the  court  refuesd 
to  try,  or  in  which  they  arrested  judgment,  because  the 
wagers  were  in  themselves  impertinent  and  offensive,  as,  for 
instance,  a  wager  as  to  the  sex  of  the  Chevalier  D'Eon  (Da 
Costa  v.  Jones,  Cowp.,  729).  No  action  now  lies  upon  a  wager, 
and  I  fear  that  there  is  no  authority  for  the  proposition  ad- 
vanced by  Professor  Greenleaf.  I  know  of  no  case  in  which 
a  fact  in  issue  or  relevant  to  an  issue  which  the  court  is 
bound  to  try  can  be  excluded  merely  because  it  would  pain 
some  one  who  is  a  stranger  to  the  action.  Indeed,  in  Da 
Costa  v.  Jones,  Lord  Mansfield  said  expressly,  "Indecency 
of  evidence  is  no  objection  to  its  being  received  where  it 
is  necessary  to  the  decision  of  a  civil  or  criminal  right" 
(p.   734).      (See  article  129  and  note  xlvii.) 

Article  3. 

relevancy  of  facts  forming  part  of  the  same  transac- 
tion as  the  facts  in  issue. 

A  transaction  is  a  group  of  facts  so  connected 
together  as  to  be  referred  to  by  a  single  legal 
name,  as  a  crime,  a  contract,  a  wrong,  or  any- 
other  subject  of  inquiry  which  may  be  in  issue,  (a) 

(a)  [The  illustrations  and  notes  given  under  the  first  three 
paragraphs  of  this  article  show  that  this  part  of  the  article 
is  intended  to  treat  of  acts  and  statements  called  forth  by 
the  happening  of  a  main  event,  as  a  murder  or  accident, 
and  narrative  of  it.  The  fact  that  the  act  or  declaration  pre- 
sented occurs  contemporaneously  with  the  transaction,  or 
soon  thereafter,  does  not,  and  cannot,  make  it  a  part  of  the 
transaction  when,  as  in  most  cases,  the  transaction  is  com- 
pleted before  such  act  is  done  or  utterance  made.] 


30  RELEVANCY  OF  FACTS 

Every  fact  which  is  part  of  the  same  transac- 
tion as  the  facts  in  issue  is  deemed  to  be  relevant 
to  the  facts  in  issue,  (b)  although  it  may  not  be 
actually  in  issue,  and  although  if  it  were  not  part 
of  the  same  transaction  it  might  be  excluded  as 
hearsay,  (c) 

Whether  any  particular  fact  is  or  is  not  part 
of  the  same  transaction  as  the  facts  in  issue  is  a 
question  of  law,  upon  which  no  principle  has  been 
stated  by  authority,  and  on  which  single  judges 
have  given  different  decisions. 

When  a  question  as  to  the  ownership  of  land 
depends  on  the  application  to  it  of  a  particular 
presumption  capable  of  being  rebutted,  the  fact 
that  it  does  not  apply  to  other  neighboring  pieces 
of  land  similarly  situated  is  deemed  to  be  relevant. 

(b)  [It  is  only  by  a  stretch  of  the  imagination  that  the 
matters  given  as  illustrative  of  the  text  of  this  paragraph 
can  be  considered  as  a  part  of  the  same  transaction  to  which 
they  are  alleged  to  be  attached.  As  a  matter  of  fact  the 
transaction  is  usually  completed  before  the  act  or  declara- 
tion sought  to  be  admitted  in  evidence  takes  place.  The 
text,  therefore,  is  inaccurate  when  based  upon  the  instances 
usually  given.  When  a  person  who  is  stabbed  states  to  the 
person  who  first  arrives  to  his  assistance,  "I'm  stabbed; 
I'm  gone;  Dan  Hackett  stabbed  me,"  (Commonwealth  v. 
Hackett,  2  Allen  136),  it  is  apparent  that  the  transaction 
was  completed  when  the  victim  was  stabbed  and  the  assail- 
ant had  fled.] 

(c)  [It  is  the  common  fault  of  courts  to  speak  of  the 
spontaneous  acts  and  exclamations  evoked  by  the  happening 
of  a  transaction  as  being  a  part  of  the  "res  gestae,"  or 
"things  done."  As  pointed  out  by  Wigmore  (3  Ev.  §§  1795- 
1797),  and  as  can  readily  be  perceived,  this  phrase  is  mis- 
placed when  applied  to  the  expressions  given  in  the  instances 
cited  under  this  head,  and  if  to  be  used  at  all  should  bd 
rather  a  catchword  in  the  treatment  of  "verbal  acts,"  which, 
with  more  correctness,  may  be  considered  a  part  of  the  tran- 
saction they  accompany.      (See   infra,   Article   8.) 

Therefore,  the  matters  treated  under  the  first  three  para- 
graphs of  this  article  will  be  considered  as  under  the  head 
of  "Spontaneous  Exclamations,"  being  an  exception  to  the 
"Hearsay"  rule.] 


RELEVANCY  OF  FACTS  31 

Illustrations. 

(a)  The  question  was.  whether  A  murdered  B  by  shooting 
him. 

The  fact  that  a  witness  in  the  room  with  B,  when  he  was 
shot  saw  a  man  with  a  gun  in  his  hand  pass  a  window 
opening  into  the  room  in  which  B  was  shot,  and  thereupon 
exclaimed,  "There's  butcher!"  (a  name  by  which  A  was 
known)  was  allowed  to  be  proved  by  Lord  Campbell,  L.  C. 
J.— 1. 

(b)  The  question  was,  whether  A  cut  B's  throat,  or  whether 
B   cut   it  herself. 

A  statement  made  by  B  when  running  out  of  the  room  in 
which  her  throat  was  cut,  immediately  after  it  had  been  cut, 
was  not  allowed  to  be  proven  by  Cockburn,  L.  C.  J. — 2. 

1  R.  v.  Fowkes,  Leicester  Spring  Assizes,  1856.  Ex  rela- 
tione O'Brien,  Serjt.  Since  the  last  edition  of  this  work  was 
published  I  have  referred  to  the  report  of  this  case  in  the 
"Times"  for  March  8,  1856,  where  the  evidence  of  the  wit- 
nesses on  this  point  is  thus  given:  "William  Fowkes:  'My 
father  got  up  the  window,  and  opened  it  and  shoved  the  shut- 
ter back.  He  waited  there  about  three  minutes.  It  was  moon- 
light, the  moon  about  the  full.  He  closed  the  window,  but 
not  the  shutter.  My  father  was  returning  to  the  sofa  when 
I  heard  a  crash  at  the  window.  I  turned  to  look  and  hooted, 
'There's  Butcher'.  I  saw  his  face  at  the  window,  but  did 
not  see  him  plain.  He  was  standing  still  outside.  I  aren't 
able  to  tell  who  it  was,  not  certainly.  I  could  not  tell  his 
size.  "While  I  was  hooting,  the  gun  went  off.  I  hooted  very 
loud.  He  was  close  to  the  shutter  or  thereabouts.  It  was 
only  open  about  eight  inches.'  Lord  Campbell:  'Did  you  see 
the  face  of  the  man?'  Witness:  'Yes;  it  was  moonlight  at 
the  time.  I  have  a  belief  that  it  was  the  Butcher.  I  be- 
lieve it  was.  I  now  believe  it  from  what  I  then  saw.  I 
heard  the  gun  go  off  when  he  went  away.  We  heard  him 
run    by   the   window   through   the   garden   towards   the   park.'  " 

Upon  cross-examination  the  witness  said  that  he  saw  the 
face  when  he  hooted,  and  heard  the  report  at  the  same  mo- 
ment. The  report  adds:  "The  statement  of  this  witness  was 
confirmed  by  Cooper,  the  policeman  (who  was  in  the  room 
at  the  time),  except  that  Cooper  saw  nothing  when  William 
Fowkes  hooted.  'There's  butcher  at  the  window!'  He 
stated  he  had  not  time  to  look  before  the  gun  went  off. 
In  this  case  the  evidence  as  to  W.  Fowkes'  statement  could 
not  be  admissible  on  the  ground  that  what  he  said  was  in 
the  prisoner's  presence,  as  the  window  was  shut  when  he 
spoke.  It  is  also  obvious  that  the  fact  that  he  said  at  the 
time,  'There's  butcher,'  was  far  more  likely  to  impress  the 
jury  than  the  fact  that  he  thought  it  was  not  true  that  the 
person  he  saw  was  the  butcher." 

2  R.  v.  Bedingfield,  Suffolk  Assizes,  1879.  The  propriety 
of  this   decision   was   the   subject  of   two   pamphlets,   one,   by 


32  RELEVANCY  OF  FACTS 

(c)  The  question  was,  whether  A  committed  manslaughter 
on  B  by  carelessly  driving   over  him. 

A  statement  made  by  B  as  to  the  cause  of  his  accident, 
as  soon  as  he  was  picked  up,  was  allowed  to  be  proved  by 
Park,  J.,  Gurney,  B.,  and  Patteson,  J.,  though  it  was  not 
a  dying  declaration  within  article  26. — 3. 

(c  a)  [The  question  was  as  to  the  cause  of  death  of  a 
brakeman.  Exclamations  of  the  conductor  to  another  brake- 
man  a  few  seconds  after  the  accident:  "My  God!  Go  back 
and  see  if  you  can  find  Leach.  The  bridge  knocked  him  off," 
are  admissible.] — 4. 

(c  b)  [The  question  is  whether  a  boy  riding  upon  the 
step  of  a  street  car  was  kicked  off  by  the  conductor.  An 
exclamation,  "The  boy  is  off,"  made  by  someone,  when  the 
conductor,  observing  the  boy  riding  upon  the  step,  pulled 
the  bell  cord  and  started  to  open  the  door,  was  admis- 
sible.]— 5. 

(c  c)  [The  question  was  whether  a  child  was  killed  by 
the  negligence  of  a  railroad  company  at  a  crossing.  State- 
ment made  by  the  child's  grandmother,  immediately  after 
the  accident,  that  it  was  her  fault,  is  admissible. ] — 6. 

(c  d)  [The  question  was,  whether  the  broken  leg  of  a 
horse  was  attributable  to  its  getting  caught  in  the  lattices 
of  a  gate  in  its  stall  or  it  broke  its  leg  while  getting  up  and 
fell  on  the  gate  and  broke  it  down  in  trying  to  get  out  of  the 
stall. 

The  statement  of  a  night  watchman  at  the  stable,  "I 
found  that  gate  on  top  of  the  horse,"  in  answer  to  a  question 
made  the  next  morning  by  the  owner,  was  inadmissible.] — 7. 

(c  e)  [The  question  was,  whether  the  door  of  an  elevator 
shaft  was  left  open  by  defendant's  servants,  or  whether 
plaintiff  opened  it.  Testimony  that  immediately  after  the 
accident  witness  heard  groans  or  cries  of  pain  down  the 
shaft,  and  a  little  boy  came  running  up  to  him  from  in 
front  of  the  elevator  door  and  said,  "A  man  came  up  and 
pushed  open  the  door  and  walked  in."  was  relevant,  as  part 
of  the  res  gestae.] — 8. 

W.    Pitt    Taylor,    who    denied,    the   other,    by    the   Lord    Chief 
Justice,   who   maintained    it. 

3  R.  v.  Poster,  6  .C.  &  P.  325.  The  judges  (Park,  J.,  Gur- 
ney, B.,  and  Patteson,  J.)  who  decided  this  case  referred  to 
Aveson  v.  Lord  Kinnaird,  6  Ea.  193. 

4  [Leach  v.  Oregon  Short  Line  R.  Co.,  29  Utah  285,  81  P. 
90.] 

5  [Britton  v.  Washington  Water  Power  Co.,  59  Wash.  440, 
110   P.    20.] 

6  [Wheeler  v.  Oregon  R.  &  Nav.  Co.,  16  Ida.  375,  102  P. 
347.] 

7  [Caldwell  v.  Nichol,  97  Ark.   420,  134  S.  W.  622.] 


RELEVANCY  OF  FACTS  33 

(d)  The  question  is,  whether  A,  the  owner  of  one  side 
of  a  river,  owns  the  entire  bed  of  it,  or  only  half  the  bed, 
at  a  particular  spot.  The  fact  that  he  owns  the  entire  bed 
a  little  lower  down  is  deemed  to  be  relevant. — 9. 

(e)  The  question  is,  whether  a  piece  of  land  by  the  road- 
side belongs  to  the  lord  of  the  manor  or  to  the  owner  of  the 
adjacent  land.  The  fact  that  the  lord  of  the  manor  owned 
other  parts  of  the  slip  of  land  by  the  side  of  the  same  road 
is  deemed   to   be  relevant. — 10. 

SPONTANEOUS    EXCLAMATIONS. 
In    General. 

"This  general  principle  is  based  on  the  experience  that, 
under  certain  experiences  of  physical  shock,  a  stress  of 
nervous  excitement  may  be  produced  which  stills  the  re- 
flective faculties  and  removes  their  control,  so  that  the 
utterance  which  then  occurs  is  a  spontaneous  and  sincere 
response  to  the  actual  sensations  and  perceptions  already 
produced  by  the  external  shock.  Since  this  utterance  is 
made  under  the  immediate  and  uncontrolled  domination  of 
the  senses,  and  during  the  brief  period  when  consider- 
ations of  self-interest  could  not  have  been  brought  fully 
to  bear  by  reasoned  reflection,  the  utterance  may  be  taken 
as  particularly  trustworthy  (or,  at  least,  as  lacking  the 
usual  grounds  of  untrustworthiness),  and  thus  expressing 
the  real  tenor  of  the  speaker's  belief  as  to  the  facts  just 
observed  by  him;  and  may  therefore  be  received  as  testi- 
mony as  to  those  facts." — 3  Wigmore  Ev.,  §  1747. 

Declarations,  to  be  a  part  of  res  gestae,  must  be  a 
spontaneous,  unpremeditated  explanation  of  the  main  fact. 
—City  of  Friend  v.  Burleigh,  53  Neb.  674,  74  N.  W.  50; 
Pledger  v.  Chicago,  B.  &  Q.  R.  Co.,  69  Neb.  456,  95  N.  W. 
1057;  City  of  Lexington  v.  Fleharty,  74  Neb.  626,  104  N. 
W.  1056;  Leach  v.  Oregon  Short  Line  R.  Co.,  29  Utah  285, 
81  P.  90,  110  Am.  St.  Rep.  708. 

Colorado.  Res  gestae  are  events  speaking  for  themselves 
through  the  instinctive  words  and  acts  of  participants, 
not  the  words  and  acts  of  participants  when  narrating  the 
events.— Graves  v.  People,  18  Colo.  170,  32  P.  63. 

8  [Beal-DoyU-  Dry  Hoods  Co.  v.  Cstrr,  86  Ark.  479,  108 
S.    W.    1053.] 

9  Jones  v.  "Williams,  2  M.  &  W.   326. 

10  Doe  v.  Kemp,   7   Bing.   382;   2  Bing.  N.  C.   102. 


34  RELEVANCY  OF  FACTS 

Res  gestae  may  be  broadly  defined  as  matter  incidental 
to  a  main  fact  and  explanatory  of  it,  including  acts  and 
words  which  are  so  closely  connected  therewith  as  to 
constitute  a  part  of  it,  and  without  a  knowledge  of  which 
the  main  fact  might  not  be  properly  understood.  The  cir- 
cumstances, facts  and  declarations  which  grow  out  of  the 
main  fact,  are  contemporaneous  with  it  and  serve  to  illus- 
trate its  character. — Denver  City  Tramway  Co.  v.  Brum- 
ley,  51  Colo.  251,  116  P.  1051. 

Nebraska.  The  term  "res  gestae"  means  things  done  in 
and  about,  and  as  a  part  of,  the  transaction  out  of  which 
the  litigation  in  hand  grew  and  on  which  transaction  said 
litigation  is  based.— Collins  v.  State,  46  Neb.  37,  64  N.  W. 
432;  Phelps  v.  Bergers,  92  Neb.  851,  139  N.  W.  632. 

Declarations,  to  be  admissible  as  a  part  of  the  res  gestae, 
must  accompany  and  be  so  connected  as  to  be  a  part  of 
the  fact  or  transaction  in  controversy  and  which  tend  to 
illustrate  or  explain  it,  such  fact  or  transaction  itself  also 
being  admissible  in  evidence. — Horst  v.  Lewis,  71  Neb. 
365,  103  N.  W.  460. 

Nevada.— Statement  of  prosecuting  witness  that  she  had 
been  robbed,  made  immediately  after  the  accident  event, 
admissible. — State  v.  Ah  Loi,  5  Nev.  101. 
Oklahoma.  The  question  of  admissibility  of  statements 
as  part  of  the  res  gestae  should,  in  a  great  measure,  be 
left  to  the  determination  of  the  trial  court.— Smith  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.,  42  Okl.  577,  142  P.  398. 
South  Dakota.  Statements  by  plaintiff  to  her  mother  after 
her  arrival  home  that  she  had  hurt  her  foot  by  stepping 
into  a  hole  in  the  sidewalk,  and  similar  statements  to  her 
mother  and  a  physician  six  months  afterwards  are  in- 
admissible.—Fallon  v.  Rapid  City,  17  S.  D.  570,  97  N.  W. 
1009. 

Texas.  Exclamation  of  a  bystander  immediately  after 
the  shooting  that  "Little  Jack  Kennedy  shot  him,  and 
there  he  goes,"  not  a  part  of  res  gestae. — Kennedy,  ex 
parte,    (Tex.  Civ.  App.),  57  S.  W.  648. 

Statements  made  which  are  a  part  of  the  res  gestae 
may  be  testified  to  by  the  person  who  made  them. — Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Hall,  34  Tex.  Civ.  App.  535,  80  S.  W. 
133. 


RELEVANCY  OF  FACTS  35 

Statement  by  a  locomotive  engineer  half  an  hour  after 
he  had  run  over  and  killed  a  man,  and  several  miles  from 
the  point  where  it  occurred,  that  "the  damn  fool  made  me 
mad  because  he  would  not  get  off  the  track,"  is  inad- 
missible—International &  G.  N.  R.  Co.  v.  Munn,  46  Tex. 
Civ.  App.  276,  102  S.  W.  442. 

In  order  to  be  admissible  as  part  of  the  res  gestae  it  is 
not  necessary  that  declarations  be  precisely  concurrent 
in  point  of  time  with  the  principal  transaction,  but  it 
should  appear  that  they  were  evoked  by  the  transaction 
and  were  without  premeditation,  that  they  sprang  out  of 
it,  were  voluntary  and  spontaneous,  and  made  at  a  time 
so  near  as  to  preclude  the  idea  of  deliberate  design. — 
Malone  v.  Texas  &  P.  Ry.  Co.,  49  Tex.  Civ.  App.  398,  109 
S.  W.  430. 

The  exclamations  of  a  person  libelled  upon  first  hearing 
the  article  read  are  admissible  as  part  of  the  res  gestae. 
— Houston  Chronicle  Pub.  Co.  v.  McDavid,  (Tex.  Civ. 
App.),  157  S.  W.  224. 

Utah.  The  test  of  admissibility  of  a  declaration  as  of 
the  res  gestae  is  whether  it  is  the  result  of  the  trans- 
action talking  through  the  declarant,  or  the  declarant 
talking  about  the  transaction. — Cromeenes  v.  San  Pedro, 
L.  A.  &  S.  L.  R.  Co..  37  Utah  475,  109  P.  10. 
Washington.  The  arrest  of  a  defendant  who  ran  into 
plaintiff  and  the  fact  that  a  bystander  requested  defend- 
ant to  take  plaintiff  home  in  his  automobile  may  be 
shown  as  res  gestae.— Segerstrom  v.  Lawrence,  64  Wash. 
245,  116  P.  876. 

Statements  and  Acts  Admissible. 
Arkansas.     Statements  of  a  switchman,  immediately  after 
an  accident,  while  he  was  under  a  car  by  which  he  had 
been  knocked  down,  are  admissible. — Little  Rock,   M.   R. 
&  T.  Ry.  Co.  v.  Leverett,  48  Ark.  333,  3  S.  W.  50. 

Declaration  as  to  cause  of  accident  made  by  one  mor- 
tally wounded  four  or  five  minutes  after  the  accident, 
admissible. — Kansas  City  Southern  Ry.  Co.  v.  Morris,  80 
Ark.  528,  98  S.  W.  363. 

Where  plaintiff  was  injured  by  a  jolt  or  shock  of  a  car 
and  exclaimed  while  alighting  that  he  was  "hurt,  and 
hurt  bad,"  this  was  in  effect  a  description  of  his  Injury 


36  RELEVANCY  OF  FACTS 

or  wound,  and  illustrative  of  the  character  and  extent  of 
his  injury,  and  an  undesigned  incident  of  it. — St.  Louis 
Southwestern  Ry.  Co.  v.  Jackson,  93  Ark.  119,  124  S.  W. 
241." 

California.  Question,  "Why  didn't  you  tell  me  to  stop?" 
addressed  by  engineer  to  fireman  immediately  after  run- 
ning into  plaintiff  and  in  her  presence,  is  admissible. — Zip- 
perlen  v.  Southern  Pac.  Co.,  7  Cal.  App.  206,  93  P.  1049. 
Colorado.  Declarations  of  the  conductor  of  a  street  car 
while  assisting  an  injured  woman  to  her  feet,  that  it  was 
not  his  fault,  but  that  the  motorman  started  too  soon,  are 
part  of  the  res  gestae. — Denver  City  Tramway  Co.  v. 
Brumley,  51  Colo.  251,  116  P.  1051. 

The  statement  of  deceased  made  at  the  time  he  was 
discovered  standing  at  a  berth  on  a  sleeping  car,  with  his 
head  between  his  hands,  to  the  effect  that  the  berth  had 
fallen  and  struck  him  on  the  head  is  admissible. — Union 
Casualty  &  Surety  Co.  v.  Mondy,  18  Colo.  App.  395,  71  P. 
677. 

Montana.  On  a  trial  for  homicide,  exclamations  of  by- 
standers on  seeing  accused  returning  to  the  place  where 
he  had  had  a  difficulty  with  deceased,  "There  he  comes 
with  a  gun,"  are  admissible. — State  v.  Biggerstaff,  17  Mont. 
510,  43  P.  709. 

Nebraska.  Statements  of  woman  fallen  from  car  with 
both  legs  cut  off,  not  more  than  two  minutes  after  the 
accident,  that  the  conductor  had  told  her  to  get  off  at 
the  next   stop,  admissible. — Missouri   P.   R.    Co.   v.   Baier, 

37  Neb.  235,  245,  55  N.  W.  913. 

Where  it  becomes  material  to  ascertain  whether  a  woman 
was  assaulted  and  the  identity  of  the  person  who  at- 
tacked her,  evidence  of  her  appearance  at  the  time  she 
was  fleeing  from  her  assailant  and  seeking  shelter  in  a 
neighbor's  house  and  her  spontaneous  declarations  with 
regard  to  the  transactions  are  admissible  as  part  of  the 
res  gestae.— Sheibley  v.  Nelson,  84  Neb.  393,  121  N.  W. 
458. 

Nevada.     Declarations  made  by  a  train  agent  in  ejecting 
a  passenger  are  admissible  as  part  of  the  res  gestae. — 
Forrester  v.  Southern  Pac.  Co.,  36  Nev.  247,  134  P.  753. 
North  Dakota.     Statements  of  deceased  while  in  the  midst 


RELEVANCY  OF  FACTS  37 

of  intense  suffering,  to  those  who  were  trying  to  find 
means  to  give  him  relief,  that  it  was  caused  by  horse 
medicine  which  he  had  taken  several  hours  before  is  rele- 
vant.—Puis  v.  Grand  Lodge  A.  O.  U.  W.,  13  N.  D.  559, 
102  N.  W.  165. 

Oklahoma.  Statement  of  deceased  to  witness  who  met 
him  less  than  a  minute  after  he  had  been  shot  and  was 
walking  fast  from  accused's  house,  that  accused  had 
treacherously  shot  him,  admissible. — Price  v.  State,  1 
Okl.  Cr.  358,  98  P.  447. 

Oregon.  Testimony  as  to  what  the  master  of  a  vessel 
said  at  the  time  or  immediately  after  giving  an  order  to 
his  engineer  to  go  full  speed  ahead  is  admissible  in  an 
action  against  a  towboat  company  by  which  the  vessel 
was  being  towed,  for  injuries  to  a  bridge. — Multonomah 
County  v.  Willamette  Towing  Co.,  49  Or.  204,  89  P.  389. 

Statement  of  an  injured  employee  immediately  after  he 
was  hurt  is  part  of  the  res  gestae. — Moulton  v.  St.  Johns 
Lumber  Co.,   61  Or.   62,   120  P.   1057. 

Texas.  Statements  made  at  the  time  of  an  accident  as 
to  the  defective  condition  of  a  pinch  bar  by  which  a 
servant  was  injured,  admissible. — St.  Louis  Southwestern 
Ry.  Co.  of  Texas  v.  Schuler,  46  Tex.  Civ.  App.  356,  102 
S.  W.  783. 

Plaintiff's  statement,  "I  am  hurt,  my  head  is  hurt," 
made  five  or  six  minutes  after  his  injury  as  a  passenger 
in  a  railroad  collision,  and  while  lying  down  next  to  the 
steps  of  the  cars,  admissible. — St.  Louis  Southwestern 
Ry.  Co.  of  Texas  v.  Coats,  (Tex.  Civ.  App.),  103  S.  W. 
662. 

Statement,  on  recovering  consciousness,  by  one  injured 
by  negligence  of  railroad  company,  held  relevant. — Paris 
&  G.  N.  Ry.  Co.  v.  Calvin,  (Tex.  Civ.  App.),  103  S.  W.  428. 

Statements  made  by  a  fireman  fifteen  or  twenty  seconds 
after  being  thrown  out  by  a  jar  in  coupling,  admitted. — 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Mitchell,  48  Tex.  Civ. 
App.  381,  107  S.  W.  374. 

Where  the  first  person  reaching  one  injured  by  a  train 
did  not  arrive  for  some  minutes  after  the  accident  during 
which  time  the  injured  person  was  suffering  great  pain 
and  did  not  know  hardly  what  he  was  doing,  his  state- 
ments made  thereupon  were  admissible. — Missouri,  K.   & 


38  RELEVANCY  OP  FACTS 

T.  Ry.  Co.  of  Texas  v.  Williams,  50  Tex.  Civ.  App.   134, 

109  S.  W.  1126;  Blackshear  v.  Trinity  &  B.  V.  Ry.  Co., 
(Tex.  Civ.  App.),  131  S.  W.  854. 

Declarations  of  a  person  injured  after  he  had  become 
conscious  thirty  minutes  after,  admissible  as  res  gestae. — 
Citizens'  Ry.  Co.  v.  Farley,  (Tex.  Civ.  App.),  136  S. 
W.  94. 

When  one  who  was  stabbed  was  immediately  taken 
across  the  street  to  a  drug  store,  and  exclaimed  as  it  was 
found  that  his  intestines  were  protruding,  "That  fellow 
took  my  life  for  nothing,"  such  statement  is  a  part  of 
the  res  gestae.— Corbitt  v.  State,  72  Tex.  Cr.  R.  396,  163 
S.  W.  436. 

Washington.  Evidence  of  plaintiff's  acts  and  declara- 
tions at  the  time  of  the  injury  are  admissible. — Piper  v. 
City  of  Spokane,  22  Wash.  147,  60  P.  137. 

Declarations  of  the  general  superintendent  of  defendant 
examining  the  scene  of  a  wreck  three  hours  after  it  oc- 
curred, that  if  the  company  used  any  more  such  wheels 
he  would  not  work  for  it,  are  admissible  as  res  gestae. — 
Roberts  v.  Port  Blakeley  Mill  Co.,  30  Wash.  25,  70  P.  111. 

Statements  made  by  a  conductor  as  to  the  cause  of  an 
accident  made  two  hours  after  its  occurrence  admissible, 
where  he  had  been  in  the  meantime  away  summoning  as- 
sistance.— Walters  v.  Spokane  International  Ry.  Co.,  58 
Wash.  293,  108  P.  593. 

Statements  of  a  boy  fallen  from  a  car  made  immediate- 
ly on  awakening  to  consciousness  eight  days  after,  that 
the  conductor  had  kicked  him  off  the  car,  are  admissible. 
— Britton  v.  Washington  Water  Power  Co.,  59  Wash.  440, 

110  P.  20. 

When  something  has  occurred  startling  enough  to  pro- 
duce nervous  excitement,  spontaneous  utterances  of 
parties  present  are  admissible  as  part  of  the  res  gestae. — 
Britton  v.  Washington  Water  Power  Co.,  59  Wash.  440, 
110  P.  20. 

Exclamation  by  a  captain  of  a  vessel  to  some  workmen 
doing  repair  work  immediately  after  an  accident  to  an- 
other workman  caused  by  the  carelessness  of  the  former, 
admissible. — Swanson  v.  Pacific  Shipping  Co.,  60  Wash. 
87,  110  P.  795. 


RELEVANCY  OF  FACTS  39 

Statements  and  Acts  Inadmissible. 

Statements,  conversation  and  remarks  made  some 
time  after  an  accident,  inadmissible. —  Silveira  v. 
Iversen,  128  Cal.  187,  60  P.  687;  Williams  v.  Southern  Pac. 
Co.,  133  Cal.  550,  65  P.  1100;  Boone  v.  Oakland  Transit 
Co.,  139  Cal.  490,  73  P.  243;  Luman  v.  Golden  Ancient 
Channel  Min.  Co.,  140  Cal.  700,  74  P.  307;  Kimic  v.  San 
Jose-Los  Gatos  Interurban  Ry.  Co.,  156  Cal.  379,  104  P. 
986;  Callahan  v.  Chicago,  B.  &  Q.  R.  Co.,  47  Mont.  401, 
133  P.  687;  Gebus  v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry. 
Co.,  22  N.  D.  29,  132  N.  W.  227;  McCullough  v.  Oregon 
Short  Line  R.  Co.,  44  Utah  337,  140  P.  767;  Gulf,  T.  &  W. 
Ry.  Co.  v.  Culver,  (Tex.  Civ.  App.),  168  S.  W.  514; 
Henry  v.  Seattle  Electric  Co.,  55  Wash.  444,  104  P.  776. 
Arkansas.  Statement  of  a  brakeman  bearing  an  injured 
child  home,  as  to  failure  of  engineer  to  keep  lookout,  in- 
admissible.—St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Kelley,  61  Ark. 
52,  31  S.  W.  884. 

California.  Declarations  made  the  following  day  after 
the  crime  not  admissible  as  part  of  res  gestae. — People  v. 
Petruzo,  13  Cal.  App.  569,  110  P.  324. 

Statements  by  plaintiff  to  a  third  person,  in  the  absence 
of  defendant,  as  to  the  cause  of  certain  bruises  on  her 
arm,  are  no  part  of  the  res  gestae. — Robinson  v.  Robin- 
son,  159  Cal.   203,   113  P.   155. 

Colorado.  Statement  made  by  engineer  of  train  six 
months  after  the  accident  that  there  was  a  defective  rail 
at  the  point  of  the  accident,  inadmissible. — Colorado  Mid- 
land R.  Co.  v.  McGarry,  41  Colo.  398,  92  P.  915. 

Declaration  which  is  but  a  narrative  of  what  occurred 
and  not  an  incident  of  the  event  not  admissible  as  res 
gestae.— Salas  v.  People,  51  Colo.  461,  118  P.  992. 
Kansas.  Declarations  made  to  persons  arriving  some 
three  to  five  minutes  after  hearing  cries,  giving  the  name 
of  the  assailant,  inadmissible. — State  v.  Pomeroy,  25  Kan. 
349. 

A  statement  made  after  apparent  delay,  showing  calcu- 
lation, and  a  reflective,  thoughtful  purpose  to  postpone 
the  making  of  it  until  witnesses  are  present  to  attest  the 
words  spoken,  removes  the  narrative  into  the  category  of 
a  self-serving  declaration,  and  renders  it  inadmissible. — 


40  RELEVANCY  OF  FACTS 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Logan,  65  Kan.  748,  70 
P.  878. 

Statements  by  one  having  in  his  possession  a  bottle 
of  wood  alcohol,  inviting  a  neighbor  to  drink,  that  the 
liquor  was  good  and  that  he  got  it  of  a  certain  person, 
are  not  part  of  the  res  gestae  of  the  transaction  of  pur- 
chasing the  liquor,  and  are  inadmissible  in  an  action  for 
negligence  in  selling  the  same. — Campbell  v.  Brown,  81 
Kan.  480,  106  P.  37. 

Nebraska.  A  statement  by  defendant,  or  his  servant,  that 
he  had  served  a  certain  mild  drink  to  deceased,  is  inad- 
missible as  a  part  of  the  res  gestae,  in  an  action  for  dam- 
ages for  the  wrongful  killing  of  deceased  by  the  sale  to 
him  of  intoxicating  liquors. — Young  v.  Beveridge,  81  Neb. 
180,  115  N.  W.  766. 

Oklahoma.  Declarations  of  a  party  injured,  made  subse- 
quently to  receiving  the  injuries,  if  wanting  in  spon- 
taniety  and  instinctiveness,  are  but  the  party  talking 
about  the  facts  and  not  the  facts  speaking  through  the 
party,  and  form  no  part  of  the  res  gestae. — Smith  v.  Chi- 
cago, R.  I.  &  P.  Ry.  Co.,  42  Okl.  577,  142  P.  398. 
Oregon.  Statements  made  by  an  employee  characteriz- 
ing his  acts  and  constituting  a  part  of  them  are  com- 
petent against  the  employer,  but  not  statements  of  a 
past  transaction.  (Statement  of  employee,  operating  a 
winch  and  derrick,  made  a  few  minutes  after  accident, 
that  he  could  not  hold  the  load  and  that  the  machinery 
was  out  of  order,  excluded.) — Fredenthal  v.  Brown  & 
McCabe,  52  Or.  33,  95  P.  1114. 

Texas.  In  an  action  on  account  of  fire  set  by  defendant's 
employees,  declarations  made  by  them  just  after  the  fire 
was  started,  while  it  was  still  raging  and  one  of  the  em- 
ployees was  fighting  to  prevent  its  approach  to  a  derrick 
were  admissible;  but  statements  as  to  the  origin  of  the 
fire  made  by  such  employees  several  days  thereafter  in 
response  to  inquiries  were  no  part  of  the  res  gestae.— 
Paraffine  Oil  Co.  v.  Berry,  (Tex.  Civ.  App.),  93  S.  W.  1089. 

Bystander's  statement  as  to  cause  of  ignition  of  oil 
escaping  from  an  oil  tank  inadmissible. — Texas  &  N.  O. 
R.  Co.  v.  Bellar,  51  Tex.  Civ.  App.  154,  112  S.  W.  323. 

Statements  of  another  passenger  as  to  the  conduct  of 


ACTS  OF  CONSPIRATORS  41 

the  conductor  in  insulting  a  fellow  passenger  made  after 
the  dispute  was  ended,  inadmissible. — Texas  &  N.  O.  R. 
Co.  v.  Marshall,  57  Tex.  Civ.  App.  538,  122  S.  W.  946. 

Testimony  given  at  an  inquest  is  not  a  part  of  the 
res  gestae. — Texas  Cent.  R.  Co.  v.  Dumas,  (Tex.  Civ. 
App.),   149   S.  W.   543. 

Washington.  Where  deceased  was  found  fallen  from  a 
car,  and  said  that  a  loose  step  or  hand-hold  caused  him 
to  fall,  statements  of  persons  who  thereafter  inspected 
the  car  from  which  they  presumed  he  had  fallen  were  in- 
admissible as  res  gestae. — Riggs  v.  Northern  Pac.  Ry.  Co., 
60  Wash.   292,   111   P.   162. 

Article  4.* 
acts  of  conspirators. 

When  two  or  more  persons  conspire  together  to 
commit  any  offense  or  actionable  wrong,  every- 
thing said,  done,  or  written  by  any  one  of  them 
in  the  execution  or  furtherance  of  their  common 
purpose,  is  deemed  to  be  so  said,  done,  or  written 
by  every  one,  and  is  deemed  to  be  a  relevant  fact 
as  against  each  of  them;  but  statements  as  to 
measures  taken  in  the  execution  or  furtherance 
of  any  such  common  purpose  are  not  deemed  to 
be  relevant  as  such  as  against  any  conspirators, 
except  those  by  whom  or  in  whose  presence  such 
statements  are  made.  Evidence  of  acts  or  state- 
ments deemed  to  be  relevant  under  this  article 
may  not  be  given  until  the  judge  is  satisfied  that, 
apart  from  them,  there  are  prima  facie  grounds 
for  believing  in  the  existence  of  tne  conspiracy 

to  which  they  relate. 
*  See  Note  at  end  of  Article. 


42  ACTS  OF  CONSPIRATORS 

Illustrations. 

(a)  The  question  is,  whether  A  and  B  conspired  together 
to  cause  certain  imported  goods  to  be  passed  through  the 
custom  house  on  payment  of  too  small  an  amount  of  duty. 

The  fact  that  A  made  in  a  book  a  false  entry,  necessary  to 
be  made  in  that  book  in  order  to  carry  out  the  fraud,  is 
deemed  to  be  a  relevant  fact  as  against  B. 

The  fact  that  A  made  an  entry  on  the  counterfoil  of  his 
cheque  book,  showing  that  he  had  shared  the  proceeds  of 
the  fraud  with  B,  is  deemed  not  to  be  a  relevant  fact  as 
against   B. — 1 

(b)  The  question  is,  whether  A  committed  high  treason 
by  imagining  the  king's  death;  the  overt  act  charged  is  that 
he  presided  over  an  organized  political  agitation  calculated 
to  produce  a  rebellion,  and  directed  by  a  central  committee 
through  local   committees. 

The  facts  that  meetings  were  held,  speeches  delivered  and 
papers  circulated  in  different  parts  of  the  country,  in  a  man- 
ner likely  to  produce  rebellion  by  and  by  the  direction  of 
persons  shown  to  have  acted  in  concert  with  A,  are  deemed 
to  be  relevant  facts  as  against  A,  though  he  was  not  present 
at  those  transactions,  and  took  no  part  in   them  personally. 

An  account  given  by  one  of  the  conspirators  in  a  letter  to 
a  friend,  of  his  own  proceedings  in  the  matter,  not  intended 
to  further  the  common  object,  and  not  brought  to  A's  notice, 
is  deemed  not  to  be  relevant  as  against  A. — 2 

(c)  [Prosecution  for  assault  to  kill.  On  proof  that  de- 
fendant and  the  wife  of  prosecuting  witness  had  conspired 
to  have  illicit  relations,  evidence  was  admitted  that  the  wife 
had,  two  days  before  the  assault,  tried  to  get  her  husband 
to  go  to  defendant's  office,  and  that  30  minutes  after  the 
shooting  his  wife,  on  hearing  that  he  was  not  seriously  in- 
jured, said,  "If  we  had  got  you  to  his  office  the  other  evening 
we  wouldn't  have  made  any  mistake."] — 3 

DECLARATIONS  OF  CONSPIRATORS. 
In  General. 
The  declarations  of  one  conspirator,  the  conspiracy  be- 
ing established,  made  during  the  pendency  of  the  crim- 
inal enterprise,  with  reference  to  the  common  object 
thereof,  are  competent  against  his  co-conspirators,  though 
defendant  is  absent. — People  v.  Sing  Yow,  145  Cal.  1, 
78  P.  235;   Porter  v.  People,  31  Colo.  508,  74  P.  879;  Van 

(1)  R.  v.   Blake,    6    Q.    B.    137-140. 

(2)  R.  v.  Hardy,  24  S.  T.  passim,  but  see  particularly 
451-453. 

3    [Burns  v.   State,  8  Okl.  Cr.   554,  129  P.  657.] 


ACTS  OF  CONSPIRATORS  43 

Wyk  v.  People,  45  Colo.  1,  99  P.  1009;  State  v.  Corcoran, 
7  Idaho  220,  61  P.  1034;  State  v.  Winner,  17  Kan.  298; 
State  v.  De  Wolfe,  29  Mont.  415,  74  P.  1084;  O'Brien  v. 
State,  69  Neb.  691,  96  N.  W.  649;  Territory  v.  Neatherlin, 
13  N.  M.  491,  85  P.  1044;  Wells  v.  Territory,  14  Okl.  436, 
78  P.  124;  Hayes,  ex  parte,  6  Okl.  Cr.  321,  118  P.  609; 
Sheppard  v.  Yocum,  10  Or.  402;  State  v.  Ryan,  47  Or.  338, 
82  P.  703;  Brown  v.  Chenoworth,  51  Tex.  469;  Wallace  v. 
State,  48  Tex.  Cr.  R.  318,  87  S.  W.  1041;  Wilson  v.  State, 
(Tex.  Cr.  R.),  155  S.  W.  242. 

Threats  of  another  made  several  months  before  assault 
by  defendant  on  prosecuting  witness  inadmissible,  where 
no  conspiracy  is  shown. — Bauer  v.  State,  3  Okl.  Cr.  529, 
107  P.  525;  Milo  v.  State,  59  Tex.  Cr.  R.  196,  127  S.  W. 
1025. 

Arizona.  Declarations  after  a  shooting  inadmissible. — 
Crowell  v.  State,  15  Ariz.  66,  136  P.  279. 
California.  The  existence  of  a  conspiracy  to  rob  being 
shown,  knowledge  of  one  that  the  victim  had  money  must 
be  imputed  to  the  other. — People  v.  Stokes,  5  Cal.  App. 
205,  89   P.  997. 

Declarations  of  one  conspiring  with  others  to  procure 
a  will  by  the  use  of  undue  influence  are  admissible. — 
Strachan's  Estate,  In  re,  166  Cal.  162,  135  P.  296. 

Declarations  of  woman  as  one  of  co-conspirators  to  pro- 
cure miscarriage  of  her  own  person  are  admissible  against 
one  accused  of  her  death  by  illegal  operation. — Solander 
v.  People,  2  Colo.  48,  63. 

Kansas.  Where  there  is  evidence  of  a  conspiracy  to  com- 
mit a  crime,  and  of  its  subsequent  commission,  the  state 
may,  and  in  support  and  corroboration  thereof,  show  any 
act  or  conduct  of  the  alleged  conspirators  intermediate 
the  conspiracy  and  the  crime,  which  apparently  recognizes 
the  existence  of  the  conspiracy,  reasonably  indicates 
preparation  to  commit  the  crime  or  preserve  its  fruits; 
and  this,  notwithstanding  such  special  act  of  preparation 
was  not  the  one  discussed  or  agreed  upon  by  the  con- 
spirators, and  is  rendered  actually  fruitless  and  unavail- 
ing by  the  unexpected  interference  of  third  parties,  and 
also  involves  the  commission  of  another  and  distinct 
crime. — State  v.  Adams,  20  Kan.  320. 


44  ACTS  OF  CONSPIRATORS 

Montana.  Declarations  of  a  co-conspirator  to  a  witness, 
that  the  witness  could  steal  horses  enough  to  pay  for  a 
certain  ranch  and  that  defendant  would  handle  them, 
were  inadmissible  against  defendant  where  they  were 
made  before  any  conspiracy  so  to  do  was  actually  formed, 
though  subsequently  such  an  arrangement  was  made,  de- 
fendant being  included.— State  v.  Allen,  34  Mont.  403,  87 
P.   177. 

North  Dakota.  The  principle  upon  which  the  declara- 
tions of  a  co-conspirator  not  on  trial  are  sometimes  ad- 
missible in  evidence  against  the  conspirator  who  is  on 
trial  is  that  by  the  act  of  conspiring  together  the  parties 
doing  so  have  assumed  as  a  body  the  attribute  of  in- 
dividuality as  relates  to  the  prosecution  of  the  common 
design  or  purpose;  hence  what  is  done  or  said  by  any  one 
in  furtherance  of  that  design  is  the  act  of  all.  Evidence 
of  such  statements  is  also  admissible  on  the  ground  of 
agency.— State  v.  Moeller,  20  N.  D..  114,  126  N.  W.  568. 
Oklahoma.  It  does  not  matter  whether  defendant  was 
present  or  had  knowledge  of  the  words  spoken  or  acts 
done.— Walker  v.  State,  (Okl.  Cr.),  127  P.  895. 
South  Dakota.  Where  an  agreement  to  commit  larceny 
is  entered  into,  all  that  occurred  at  the  commission  of  the 
crime  is  admissible,  though  defendant  is  not  present. — 
State  v.  Cline,  27  S.  D.  573,  132  N.  W.  160. 
Texas.  Movements  of  alleged  conspirators  before  a  homi- 
cide and  during  the  morning  of  the  homicide,  both  before 
and  immediately  after  its  commission,  may  be  shown. — 
Jenkins  v.  State,  45  Tex.  Cr.  R.  173,  75  S.  W.  312. 

It  being  shown  by  other  testimony  that  two  persons 
were  acting  together  in  assault,  testimony  that  one  came 
up  and  began  to  curse  and  swear  at  the  injured  party,  and 
threw  chunks  and  sticks,  is  admissible  as  against  the 
other.— Whittle  v.   State,    (Tex.  Cr.  R.),  95  S.  W.  1084. 

Purchase  of  ammunition  by  one  of  conspirators, 
shown.— Dobbs  v.  State,  54  Tex.  Cr.  R.  579,  113  S.  W.  921. 

Where  defendant  and  his  father  participated  in  a  dif- 
ficulty with  prosecutor,  but  no  evidence  of  a  conspiracy 
so  to  do  was  shown,  the  fact  that  the  father  thereafter 
tried  to  induce  a  witness  to  commit  perjury  is  inadmis- 
sible against  defendant. — Day  v.  State,  62  Tex.  Cr.  R.  413, 
138  S.  W.  127. 


ACTS  OF  CONSPIRATORS  45 

What  is  said  and  done  by  any  of  the  conspirators,  pend- 
ing the  conspiracy  and  in  furtherance  of  the  common  de- 
sign is  admissible  against  the  one  on  trial,  though  said 
and  done  in  his  absence. — Serrato  v.  State,  "74  Tex.  Cr. 
R.  413,  171  S.  W.  1133. 

If  the  crime  committed  is  not  in  any  way  connected  with 
the  common  purpose  and  design  of  the  conspirators,  but 
is  an  independent  act  of  one  of  the  parties,  although  he 
did  it  while  engaged  in  the  design,  the  others  would  not 
be  legally  responsible  for  such  independent  act;  but  if 
the  crime  was  in  furtherance  of  the  common  purpose  and 
design,  and  the  facts  show  that  it  was  such  an  offense  as 
might  have  been  and  should  have  been  contemplated  by 
the  parties  would  be  the  result  of  the  execution  of  the 
common  design,  and  it  was  so  executed,  then  all  engaged 
in  the  unlawful  purpose  are  equally  guilty  of  the  offense, 
although  they,  at  the  time,  may  have  been  engaged  in 
some  other  part  of  the  common  purpose  and  design. — 
Serrato  v.  State,  74  Tex.  Cr.  R.  413,  171  S.  W.  1133. 
Utah.  When  a  witness  has  been  engaged  as  a  detective, 
it  is  not  proper  to  put  in  evidence  his  statement  to  others 
as  those  of  a  co-conspirator  and  plotter  with  the  defend- 
ants, made  in  furtherance  of  such  plot  or  design. — State 
v.  Kilburn,  16  Utah  187,  52  P.  277. 

Washington.  Where  there  was  evidence  of  a  conspiracy 
to  control  the  price  of  milk  in  a  city,  letters  written  by 
one  within  a  few  days  after  the  agreement,  and  in  fur- 
therance of  the  conspiracy  were  admissible. — State  v. 
Erickson,  54  Wash.  472,  103  P.  796. 

Where  there  was  evidence  of  a  conspiracy  between  de- 
fendant and  another  to  defraud  by  the  sale  of  worthless 
mining  stock,  the  co-conspirator  acting  as  a  trance 
medium,  it  is  permissible  for  the  prosecution  to  put  in 
evidence  two  photographs  of  the  latter  one  showing  him 
in  Oriental  costume  with  the  writing,  "  'The  great'  wait- 
ing for  a  'sod-buster'  with  sufficient  sheckels  to  make  it 
interesting,"  and  the  other  showing  the  words,  "  'The 
great'  at  work  on  a  sucker." — State  v.  Craddick,  61  Wash. 
425,  112  P.  491. 

If  a  conspiracy  is  in  fact  formed  when  a  defendant 
actively  participates  in  it,  he  adopts  the  previous  acta 
and    declarations    of    his    fellow    conspirators,    and    their 


46  ACTS  OF  CONSPIRATORS 

declarations,  although  made  before  defendant  joins  the 
lawless  association,  are  admissible  in  his  trial. — State  v. 
Caseday,  58  Wash.  429,  115  P.  287. 

Every  act  done  in  furtherance  of  the  common  purpose, 
whether  before  or  after  the  property  stolen  was  asported, 
is  admissible.— State  v.  Pettit,   77   Wash.   67,   137  P.   335. 
After  Completion  of  Main  Act. 

After  the  purpose  of  a  conspiracy  has  been  accom- 
plished, and  the  joint  enterprise  completed,  acts,  declara- 
tions, conduct  or  appearance  of  one  of  the  co-conspirators 
is  not  admissible  as  against  the  other. — Benton  v.  State, 
78  Ark.  284,  94  S.  W.  688;  Barkly  v.  Copeland,  80  Cal. 
483,  25  P.  405;  People  v.  Aleck,  61  Cal.  137;  People  v. 
Opie,  123  Cal.  294,  55  P.  989;  State  v.  Wells,  33  Mont. 
291,  83  P.  476;  Stratton  v.  Oldfield,  41  Neb.  702,  60  N. 
W.  82;  State  v.  Tice,  30  Or.  457,  48  P.  367;  State  v. 
Aiken,  41  Or.  294,  69  P.  683;  Mcllvaine  v.  First  Nat. 
Bank,  33  S.  D.  389,  146  N.  W.  574;  Faulkner  v.  State,  43 
Tex.  Cr.  R.   311,   65   S.  W.   1093. 

Admissions  of  one  taking  part  in  a  conspiracy  are  in- 
admissible after  the  consummation  thereof,  except  as  to 
the  one  making  such  admission. — State  v.  Merchants' 
Bank,  81  Neb.  704,  116  N.  W.  667;  Burns  v.  State,  8  Okl. 
Cr.  554,  129  P.  657;  Ball  v.  Danton,  64  Or.  184,  129  P. 
1032. 

After  the  unlawful  agreement  ends,  evidence  of  declara- 
tions thereafter  made  by  either  of  the  parties,  is  inad- 
missible except  where  such  act  or  declaration  relates  to 
a  subsisting  interest  in  property  fraudulently  acquired 
pursuant  to  the  conspiracy. — State  v.  Stevenson,  26 
Mont.  332,  67  P.  1001;  State  v.  Smith,  55  Or.  408,  106 
P.    797. 

A  conspiracy  to  steal  and  sell  hogs,  or  other  property, 
for  the  benefit  of  all  engaged  in  the  illegal  enterprise 
is  pending  until  the  sale  has  been  made  and  proceeds 
divided.— People  v.  Opie,  123  Cal.  294,  55  P.  989;  O'Brien 
v.  State,  69  Neb.  691,  96  N.  W.  649;  Small  v.  State,  (Tex. 
Cr.  R),  40  S.  W.  790. 

Arkansas.  After  a  conspiracy  to  kill  has  terminated  by 
the  killing,  it  is  not  competent  as  against  defendant  to 
show  by  a  witness  that  he  had  stamped  out  imprints  at 


ACTS  OF  CONSPIRATORS  47 

the  direction  of  a  conspirator. — Routt  v.  State,  107  Ark.  634, 
155  S.  W.  513. 

California.  Declaration  of  a  co-conspirator,  made  while 
shooting  was  going  on,  and  he  had  fled  to  a  place  of 
safety,  that,  "I  knew  he  (deceased)  was  going  to  get  it," 
is  inadmissible  against  his  fellow  conspirator,  as  such 
declaration  was  not  in  aid  or  execution  of  the  conspiracy 
or  in  furtherance  of  its  objects. — People  v.  Smith,  151 
Cal.  619,  91  P.  511. 

Colorado.  Acts  and  declarations,  and  flight  of  a  co-con- 
spirator, after  the  transaction,  inadmissible. — Smith  v. 
People,  38  Colo.  509,  88  P.  453. 

Idaho.  Where  a  conspiracy  existed  between  defendant 
and  his  wife  for  the  purpose  generally  of  procuring  girls 
to  have  sexual  intercourse  with  defendant,  a  statement 
or  declaration  made  by  the  wife  subsequent  to  the  com- 
mission of  a  specific  act,  and  during  the  existence  of  the 
common  design,  is  admissible. — State  v.  Hammock,  18 
Idaho  620,  110  P.  169. 

Nevada.  The  declaration  of  a  co-conspirator  that  the 
other  was  a  "big  boob,  or  he  never  would  have  been 
caught,"  was  inadmissible  against  the  other,  when  made 
after  the  parties  charged  were  under  arrest  and  the  con- 
spiracy was  at  an  end. — State  v.  Smith,  33  Nev.  438,  117 
P.  19. 

The  declaration  of  a  co-conspirator  with  one  charged 
with  larceny  of  gold  amalgam  that  he  had  made  thou- 
sands and  thousands  of  dollars  for  defendant  was  inad- 
missible, where  it  did  not  appear  that  declarant  was  not 
referring  to  legitimate  transactions. — State  v.  Smith,  33 
Nev.  438,  117  P.  19. 

Oregon.  Notwithstanding  a  conspiracy  to  commit  mur- 
der has  terminated,  evidence  of  the  appearance  of  one 
of  the  conspirators  soon  after  the  homicide  and  probably 
before  he  had  opportunity  to  change  his  apparel,  is  ad- 
missible against  the  other. — State  v.  Aiken,  41  Or.  294, 
69  P.  683. 

Acts  and  statements  of  a  co-conspirator  while  attempt- 
ing to  sell  the  stolen  meat  are  admissible. — State  v.  Gar- 
rett, 71  Or.  298,  141  P.  1123. 

Texas.  A  conspiracy  to  steal  corn  being  in  evidence,  a 
statement  by  an  alleged  accomplice,  when  the  sheriff  and 


48  ACTS  OF  CONSPIRATORS 

another  were  hunting  for  the  corn,  that  "they  had  to  go 
and  move  the  corn,  and  if  ever  you  tell  it,  we  will  have  to 
kill  the  one  that  tells,"  is  admissible. — Barber  v.  State, 
(Tex.  Cr.  R.),  69  S.  W.  515. 

The  state  can  prove  the  possession  of  the  fruits  of  a 
crime  by  any  of  the  parties,  even  after  the  conspiracy  has 
terminated.— Bink  v.  State,  48  Tex.  Cr.  R.  598,  89  S.  W. 
1075. 

Where  evidence  connected  two  with  conspiracy  to  cut 
a  fence,  testimony  that  after  the  act  was  completed  one 
of  the  conspirators  was  seen  to  throw  away  a  pair  of  wire 
nippers  was  admissible  on  the  trial  of  the  other. — Hender- 
son v.  State,  50  Tex.  Cr.  R.  266,  96  S.  W.  37. 

Where  it  was  part  of  a  conspiracy  to  murder  that, 
after  the  killing,  a  co-conspirator  should  return  to  the 
body  and  place  a  knife  there,  so  as  to  show  that  what 
defendant  did  was  done  in  self-defense,  it  would  be  in 
the  nature  of  concealing  the  crime,  and  the  acts  and 
declarations  of  the  co-conspirator  while  so  engaged  would 
be  admissible.— Eggleston  v.  State,  59  Tex.  Cr.  R.  542,  128 
S.  W.  1105. 

The  state  may  prove  the  finding  of  a  bank  book  in  the 
house  where  defendant  and  co-conspirators  were  living, 
showing  the  deposit  of  a  large  amount  of  money  by  one 
of  such  conspirators  shortly  after  the  robbery  of  the  bank 
in  question. — Bowen  v.  State,  60  Tex.  Cr.  R.  595,  133  S. 
W.  256. 

A  conspiracy  being  shown  between  defendant  and  his 
brother,  evidence  is  admissible  that  a  few  days  before 
the  killing  defendant's  brother,  upon  being  asked  what 
the  trouble  was  between  defendant  and  deceased,  replied, 
"It  ain't  going  to  leak  out  from  us;  it  may  leak  out  after 
a  while,  but  it  will  never  come  from  us." — Cameron  v. 
State,  69  Tex.  Cr.  R.  439,  153  S.  W.  867. 

Acts  and  declarations  of  one  conspirator  in  furtherance 
of  the  common  design  are  admissible  against  another  con- 
spirator pending  the  conspiracy  and  until  its  final  termi- 
nation. This  proposition  includes  anything  that  was  in 
the  contemplation  of  the  conspiracy,  such  as  dividing 
the  spoils,  or  any  of  those  matters  that  may  be  subsequent 
to,  but  included  in  the  scope  of  the  conspiracy. — Serrato 
v.  State,  74  Tex.  Cr.  R.  413,  171  S.  W.  1133. 


ACTS  OF  CONSPIRATORS  49 

Utah.  Statements  after  the  object  of  the  conspiracy  is 
accomplished  are  inadmissible  in  the  absence  of  the  other 
conspirator.— State  v.  Gillies,  40  Utah  541,  123  P.  93. 
Washington.  Where  there  was  evidence  not  only  of  a 
conspiracy  to  commit  a  crime  but  also  to  fabricate  a  de- 
fense, a  letter  written  by  one  of  the  defendants  while  they 
were  in  jail  before  the  trial,  tending  to  fabricate  a  de- 
fense, was  admissible  against  the  others. — State  v.  Dilley, 
44  Wash.  207,  87  P.  133. 

Narrative    By   Co-conspirator. 

Narratives  by  a  co-conspirator  of  events  concerning  an 
accomplished  crime  are  not  admissible  against  a  defend- 
ant on  trial,  unless  made  in  his  presence. — People  v. 
Dresser,  117  Cal.  App.  688,  117  P.  688;  State  v.  Beebe,  66 
Wash.  463,  118  P.  920;  State  v.  Nist,  66  Wash.  55,  118 
P.  920. 

Declarations  of  one  conspirator  are  admissible  as 
against  the  others  in  pursuance  of  the  common  object, 
and  not  a  narrative  of  past  transactions.— Harrington  v. 
Butte  &  B.  Min.  Co.,  19  Mont.  411,  48  P.  758;  Farley  v. 
Peebles,  50  Neb.  723,  70  N.  W.  231;  Lockhart  v.  Washing- 
ton Gold  &  Silver  Mining  Co.,  16  N.  M.  223,  117  P.  833; 
Muller  v.  Flavin,  13  S.  D.  595,  83  N.  W.  687;  Hughes  v. 
Waples-Platter  Grocer  Co.,  25  Tex.  Civ.  App.  212,  60  S. 
W.   981. 

Evidence   of   Fact   of   Conspiracy. 

Declarations  of  alleged  conspirators  are  not  admissible 
to  prove  the  fact  of  conspiracy. — State  v.  Merchants'  Bank, 
M  Neb.  704,  116  N.  W.  667;  Osmun  v.  Winters.  30  Or.  177, 
46  P.  780. 

Proof  of  acts  and  declarations  of  conspirators  compe- 
tent to  establish  conspiracy. — State  v.  Ryan.  47  Or.  338, 
82  IV  70S. 

The  order  of  proof  is  within  the  discretion  of  (he  trial 
court,  and  it  is  not  essential  that  proof  of  the  existence  of 
a  conspiracy  be  first  made,  in  order  that  evidence  may  be 
received  of  acts  of  one  associated  with  the  accused  in  the 
common  design.— Easter  v.  State,  96  Ark.  629,  132  S.  W. 
924;  Joyce  v.  State.  SS  Neb.  599,  130  \.  \\\  291;  State  v. 
Caseday,  5S  Or.  429.  115  P.  287. 

Arkansas.     All    that    is    necessary    to    render   declarations 
of  a  co-conspirator  admissible  is  for  the  state  to  make  a 


50  ACTS  OF  CONSPIRATORS 

prima  facie  showing  of  the  existence  of  such  conspiracy 
at  the  time  the  alleged  statements  were  made. — Cumnock 
v.  State,  87  Ark.  34,  112  S.  W.  147;  Easter  v.  State,  96 
Ark.  629,  132  S.  W.  924. 

California.  Testimony  of  the  acts  and  declarations  of  an 
alleged  conspirator  before  proof  of  the  conspiracy  is  made 
is  permissible. — People  v.  Carson,  155  Cal.  164,  99  P.  970. 
Oklahoma.  Slight  evidence  that  persons  were  acting  to- 
gether or  concerned  in  the  offense  charged  is  all  that  is 
required,  in  order  to  admit  the  declarations  of  one  as 
evidence  against  the  other. — Sturgis  v.  State,  2  Okl.  Cr. 
362,  102  P.  57. 

Slight  evidence  of  collusion  is  all  the  law  requires  to 
admit  the  acts  and  declarations  of  a  conspirator  in  evi- 
dence against  his  co-conspirator. — Hayes,  ex  parte,  6 
Okl.  Cr.  321,  118  P.  609. 

Texas.  It  is  not  necessary  that  a  conspiracy  must  be  first 
established  before  evidence  of  the  acts  or  declarations  of 
co-conspirators  made  in  the  absence  of  defendant  could 
be  introduced  against  him,  but  such  evidence  may  be  in- 
troduced in  the  first  instance,  the  prosecution  undertaking 
to  show  a  conspiracy,  the  evidence  being  excluded  if  no 
conspiracy  is  shown. — Bowen  v.  State,  47  Tex.  Cr.  R.  137, 
82  S.  W.  520. 

Evidence  of  a  conspiracy  is  necessary  in  order  to  admit 
acts  or  declarations  of  an  alleged  conspirator. — Ripley  v. 
State,   (Tex.  Cr.  R.),  100  S.  W.  943. 

A  conspiracy  can  be  proved  by  circumstances,  as  well 
as  by  positive  evidence. — Ripley  v.  State,  (Tex.  Cr.  R.), 
100  S.  W.  943. 

The  better  practice  is  to  first  establish  a  conspiracy 
before  permitting  the  declarations  of  the  conspirators  in 
the  absence  of  each  other  to  be  admissible;  but  if  the 
conspiracy  be  proved  subsequently,  it  is  immaterial  that 
the  declarations  were  admitted  first. — Proctor  v.  State,  54 
Tex.  Cr.  R.  254,  112  S.  W.  770. 

Utah.  A  conspiracy  may  not  be  established  by  the  acts 
and  declarations  of  only  one  of  the  alleged  conspirators. 
—State  v.  Inlow,  44  Utah  485,  141  P.  530. 
Washington.  The  court  must  determine  in  the  first  in- 
stance whether  there  is  sufficient  prima  facie  evidence  of 
a  conspiracy  to  justify  the  submission  to  the  jury  of  the 


TITLE  51 

acts  and  declarations  of  an  alleged  conspirator  as  evidence 
against  his  fellows.— State  v.  Dilley,  44  Wash.  207,  87 
P.  133. 

Whether  proof  of  conspiracy  shall  be  first  made  is  in 
the  discretion  of  court. — State  v.  Wappenstein,  67  Wash. 
502,  121  P.  989. 

NOTE   III. 
(To    Article    4.) 

On  this  subject  see  also  1  Ph.  Ev.  157-164;  T.  E.  ss.  527- 
532;  Best,  s.  508;  3  Russ.  on  Crimes,  by  Greaves,  161-167. 
(See,  too,  The  Queen's  Case,  2  Br.  &  Bing.  809-310.)  [2  Wig- 
more   Ev.,    §    1079.] 

The  principle  is  substantially  the  same  as  that  of  prin- 
cipal and  accessory,  or  principal  and  agent.  When  various 
persons  conspire  to  commit  an  offense  each  makes  the  rest 
his  agents  to  carry  the  plan  into  execution.  (See,  too,  Arti- 
cle 17,   Note  XII.) 

Article  5.* 

TITLE. 

When  the  existence  of  any  right  of  property, 
or  of  any  right  over  property  is  in  question,  every 
fact  which  constitutes  the  title  of  the  person 
claiming  the  right,  or  which  shows  that  he  or 
any  person  through  whom  he  claims  was  in  pos- 
session of  the  property,  and  every  fact  which  con- 
stitutes an  exercise  of  the  right,  or  which  shows 
that  its  exercise  was  disputed,  or  which  is  in- 
consistent with  its  existence  or  renders  its  ex- 
istence improbable,  is  deemed  to  be  relevant,  (a) 

(a)  [For  declarations  of  persons  in  possession  of  property 
as  verbal  acts,   see   infra.   Article   8. 

For  evidence  of  reputation  to  prove  boundaries,  etc.,  see 
infra,  Article  30.] 


*  See  Note  at  end  of  Article. 


52  TITLE 


Illustrations. 

(a)  The  question  is,  whether  A  has  a  right  of  fishery  in 
a  river. 

An  ancient  inquisitio  post  mortem  finding  the  existence  of 
a  right  of  fishery  in  A's  ancestors,  licenses  to  fish  granted 
by  his  ancestors,  and  the  fact  that  the  licensees  fished  under 
them,    are    deemed    to    be    relevant. — 1 

(b)  The  question  is,   whether  A  owns  land. 

The  fact  that  A's  ancestors  granted  leases  of  it  is  deemed 
to  be  relevant. — 2 

(c)  The  question  is,  whether  there  is  a  public  right  of  way 
over  A's   land. 

The  facts  that  persons  were  in  the  habit  of  using  the  way, 
that  they  were  turned  back,  that  the  road  was  stopped  up, 
that  the  road  was  repaired  at  the  public  expense,  and  A's 
title  deeds  showing  that  for  a  length  of  time,  reaching  be- 
yond the  time  when  the  road  was  said  to  have  been  used, 
no  one  had  power  to  dedicate  it  to  the  public,  are  all  deemed 
to    be    relevant. — 3 

California.  In  an  action  against  a  sheriff  for  carrying 
away  plaintiff's  property  as  another's,  plaintiff  may  intro- 
duce evidence  showing  acts  of  ownership  on  his  part, 
tending  to  prove  his  possession  of  the  property. — Fitch  v. 
Brockmon,  3  Cal.  348. 

Declarations  made  by  an  owner  of  property  who  had 
parted  with  title  by  the  execution  of  a  deed  which  was 
not  placed  on  record,  made  at  the  time  of  and  subse- 
quent to  the  execution  of  another  instrument,  as  to  the 
character  of  the  subsequent  instrument,  whether  deed  or 
mortgage,  are  admissible. — Bell  v.  Pleasant,  145  Cal.  410, 
78  P.  957. 

Nebraska.  The  question  being  whether  stock  attached 
belonged  to  plaintiff  or  the  one  in  whose  name  they  were 
shipped,  the  fact  that  plaintiff  furnished  the  money  with 
which  the  stock  were  paid  for  before  shipment  is  admis- 
sible.—Paddock  v.  Sam  Gosney  Live  Stock  Commission 
Co.,  48  Neb.  176,  66  N.  W.  1121. 

1  Rogers  v.  Allen,  1  Camp.  309. 

2  Doe  v.  Pulman,  3  Q.  B.  622,  623,  626  (citing  Duke  of  Bed- 
ford v.  Lopes).  The  document  produced  to  show  the  lease 
was  a  counterpart  signed  by  the  lessee.  See  post,  Article 
64. 

3  Common  practice.  As  to  the  title  deeds,  Brough  v.  Lord 
Scarsdale,   Derby  Summer  Assizes,   1865. 


TITLE  53 

Texas.  Acts  of  ownership  are  competent  to  show  the 
actor's  claim  of  title  under  a  conveyance  whose  execu- 
tion is  in  issue.— Rankin  v.  Busby,  (Tex.  Civ.  App.),  25 
S.  W.  678. 

Field  notes  reciting  that  the  survey  was  made  at  a  cer- 
tain person's  request  are  competent  on  the  issue  of  such 
person's  ownership  of  the  land  surveyed. — Rankin  v. 
Busby,    (Tex.  Civ.  App.),  25  S.  W.  678. 

On  an  issue  as  to  the  ownership  of  a  stock  of  merchan- 
dise, a  check  executed  by  plaintiff  to  the  former  owner, 
reciting  that  it  was  "in  full  for  stock  of  goods,"  is  admis- 
sible.—Kean  v.  Zundelowitz,  9  Tex.  Civ.  App.  350,  29  S. 
W.  930. 

The  fact  that  a  certain  grantor  of  defendant  had  been 
claiming  the  land  in  controversy  is  admissible. — Rice  v. 
Melott,  32  Tex.  Civ.  App.  426,  74  S.  W.  935. 

NOTE    IV. 
(To    Article    5.) 

The  principle  is  fully  explained  and  illustrated  in  Mal- 
colmson  v.  O'Dea,  10  H.  L.  C.  593.  See  particularly  the  re- 
ply to  the  questions  put  by  the  House  of  Lords  to  the  Judges, 
delivered  by  Willes,   J.,   611-622. 

See  also   1  Ph.   Ev.   234-239;   T.   E.   ss.   593-601;    Best,  s.   499. 

Mr.  Phillips  and  Mr.  Taylor  treat  this  principle  as  an  ex- 
ception to  the  rule  excluding  hearsay.  They  regard  the  state- 
ments contained  in  the  title  deeds  as  written  statements 
made  by  persons  not  called  as  witnesses.  I  think  the  deeds 
must  be  regarded  as  constituting  the  transactions  which  they 
effect;  and  in  the  case  supposed  in  the  text  those  transac- 
tions are  actually  in  issue.  When  it  is  asserted  that  land 
belongs  to  A,  what  is  meant  is,  that  A  is  entitled  to  it  by  a 
series  of  transactions  of  which  his  title  deeds  are  by  law  the 
exclusive  evidence  (see  Article  40).  The  existence  of  the 
deeds  is  thus  the  very  fact  which  is  to  be  proved. 

Mr.  Best  treats  the  case  as  one  of  "derivative  evidence," 
an   expression   which   does  not  appear   to   me  felicitous. 


54  CUSTOMS 

Article  6. 


When  the  existence  of  any  custom  is  in  ques- 
tion, every  fact  is  deemed  to  be  relevant  which 
shows  how,  in  particular  instances,  the  custom 
was  understood  and  acted  upon  by  the  parties 
then  interested. 

[Where  the  doing  of  an  act  by  a  person  is  in 
issue,  evidence  of  habit,  custom  or  usage  is  rele- 
vant to  show  whether  or  not  he  did  the  act  in 
question.]  (a) 

Illustrations. 

(a)  The  question  is,  whether,  by  the  custom  of  borough- 
English,  as  prevailing  in  the  manor  of  C,  A  is  heir  to  B. 

The  fact  that  other  persons,  being  tenants  of  the  manor, 
inherited  from  ancestors  standing  in  the  same  or  similar  re- 
lations to  them  as  that  in  which  A  stood  to  B,  is  deemed  to 
be  relevant. — 1 

(b)  The  question  was,  whether,  by  the  custom  of  the 
country,  a  tenant-farmer,  not  prohibited  by  his  lease  from 
so  doing,  might  pick  and  sell  surface  flints,  minerals  being 
reserved  by  his  lease.  The  fact  that,  under  similar  provi- 
sions in  neighboring  farms,  flints  were  taken  and  sold,  is 
deemed   to  be  relevant. — 2 

RELEVANCY  OF  CUSTOM  OR  HABIT. 

Colorado.  Custom  of  water  consumers  in  a  district  to-  di- 
vide the  year  into  a  season  of  direct  irrigation,  from  April 
15  to  September  15,  and  a  season  of  storage,  from  Sep- 
tember 15  to  April  15,  being  contrary  to  statute,  binds 
neither  water  officials  nor  consumers  in  other  districts  of 
the  same  division,  so  as  to  prevent  the  latter  from  obtain- 
ing water  for  direct  irrigation   when  needed. — Comstock 

(a)    [See    1    Wigmore   Ev.,    §§    92-99.] 

1  Muggleton  v.  Barnett,  1  H.  &  N.  282.  For  a  late  case  of 
evidence  of  a  custom  of  trade,  see  Ex  parte  Powell,  in  re 
Matthews,  L.   R.   1   Ch.   D.   501. 

2  Tucker  v.  Linger,  21  Ch.  D.  18;  and  see  Article  10. 


CUSTOMS  55 

v.  Larimer  &  Weld  Reservoir  Co.,  58  Colo.  186,  145  P.  700. 
Kansas.  Testimony  of  those  in  the  ice  business  as  to  the 
percentage  of  loss  by  melting,  etc.,  of  ice  when  properly 
handled  and  managed,  is  competent  for  the  purpose  of 
determining  what  amount  of  ice  was  originally  in  an 
ice  house. — Sexton  v.  Lamb,  27  Kan.  429. 

Habit  of  carefully  approaching  a  railroad  crossing  admis- 
sible to  show  care  on  occasion  of  accident. — Missouri  Pac. 
R.  Co.  v.  Moffatt,  60  Kan.  113,  55  P.  837. 
Montana.  Evidence  of  deceased  having  made  a  practice 
of  jumping  on  a  train  while  in  motion  affords  no  infer- 
ence that  he  did  so  on  the  day  he  was  killed. — Mulville 
v.  Ins.  Co.,  19  Mont.  95,  47  P.  650. 

Nebraska.  Action  for  injuries  to  child  by  stepping  into 
hot  ashes.  Continual  deposit  of  ashes  in  same  place  was 
allowed  to  be  shown. — Lincoln  V.  P.  &  B.  Co.  v.  Buckner, 
39  Neb.  742,  57  N.  W.  749. 

To  show  that  a  judgment  was  properly  indexed  on  the 
day  of  filing  transcript,  the  uniform  custom  of  the  clerk 
was  received. — Gate  City  Abstract  Co.  v.  Post,  55  Neb. 
742,  76  N.  W.  471. 

North  Dakota.  Evidence  of  custom  at  a  certain  place 
relative  to  receiving  grain  at  elevators  and  accounting 
therefor  by  issuance  of  tickets,  is  relevant  to  explain 
and  account  for  the  fact  that  tickets  were  not  issued,  nor 
demanded  by  plaintiff,  for  each  load  of  grain  when  de- 
livered.— Cochrane  v.  National  Elevator  Co.,  20  N.  D.  169, 
127  N.  W.  725. 

South  Dakota.  Deposit  of  telegraph  message  in  office  of 
operator  raises  a  presumption  that  it  was  received  by  the 
addressee. — Western  Twine  Co.  v.  Wright,  11  S.  D.  521,  78 
N.  W.  942. 

Texas.  Custom  of  other  railroads  in  making  flying 
switphes  inadmissible  to  prove  manner  of  making  the  fly- 
ing switch  in  question. — Weatherford  M.  W.  &  N.  Co.  v. 
Duncan,  88  Tex.  611,  32  S.  W.  878. 

Duties  of  brakeman  on  other  roads  not  admissible  to 
show  duties  on  a  particular  road. — McCray  v.  Galveston, 
H.  &  S.  A.  Ry.  Co.,  89  Tex.  168,  34  S.  W.  95. 

In  an  action  for  damages  on  account  of  delay  in  trans- 
porting cattle  to  a  destination  in  time  for  the  early  Mon- 


56  CUSTOMS 

day  morning  market,  evidence  is  admissible  showing  that 
the  market  was  generally  better  early  in  the  morning  than 
later  in  the  day. — Texas  &  P.  Ry.  Co.  v.  Slaughter,  37  Tex. 
Civ.  App.  624,  84  S.  W.  1085. 

In  a  suit  between  a  factor  and  his  principals,  where 
evidence  was  admitted  going  fully  into  the  dealing  of  the 
principals  with  the  factor,  evidence  to  prove  their  custom 
in  dealing  with  agents  in  other  states  was  inadmissible. — 
Couturie  v.  Roensch,  (Tex.  Civ.  App.),  134  S.  W.  413. 
Utah.  A  usage  or  custom  cannot  be  given  in  evidence  to 
relieve  a  party  from  his  express  agreement,  or  to  change 
a  contract  certain  in  its  terms,  yet  it  may  aid  in  interpret- 
ing the  intentions  of  the  parties  to  a  contract,  the  real 
character  of  which  is  to  be  ascertained,  not  alone  from 
express  stipulations,  but  also  from  general  implications 
and  presumptions  arising  from  the  nature  and  character 
of  the  employment.- — Anderson  v.  Daly  Mining  Co.,  16 
Utah  28,  50  P.  815. 

Proof  of  mailing  a  notice  raises  a  presumption,  from 
the  usual  course  of  business  through  the  mails,  that  the 
notice  was  received. — Brown  v.  Fraternal  A.  Assoc,  18 
Utah  265,  55  P.  63. 

EVIDENCE  TO  PROVE  CUSTOM  OR  HABIT. 
Arkansas.  Testimony  of  one  whom  plaintiff  succeeded  as 
sales  manager  that  he  had  been  employed  by  the  year  and 
had  worked  for  defendant  for  seven  years,  is  relevant  as 
tending  to  show  the  custom  of  the  company  in  the  em- 
ployment of  persons  to  fill  that  position. — Arkadelphia 
Lumber  Co.  v.  Asman,  85  Ark.  568,  107  S.  W.  1171. 
California.  Proof  of  specific  acts  of  intoxication  is  not 
evidence  of  a  habit. — Cosgrove  v.  Pitman,  103  Cal.  268, 
273,  37  P.  232. 

Colorado.  Judicial  notice  cannot  be  taken  of  the  usages 
and  customs  of  mining  districts. — Sullivan  v.  Hense,  2 
Colo.  424,  433. 

The  rule  or  custom  of  a  mining  district  as  to  the  length 
of  claims  located  in  the  district  may  be  proved  by  the 
record  of  such  claims. — Sullivan  v.  Hense,  2  Colo.  424. 

Evidence  that  dealers  in  like  goods  had  been  accus- 
tomed to  pay  ten  per  cent,  commission  to  hackdrivers 
bringing  them  tourist  business,  is  insufficient  to  establish 


MOTIVE,   PREPARATION,   ETC.  57 

a  custom  to  pay  such  commission  on  a  sale  of  approxi- 
mately $4,500,  where  such  other  sales  had  always  been  for 
comparatively  small  amounts. — Heistand  v.  Bateman,  41 
Colo.  20,  91  P.  1111. 

Texas.  Evidence  of  authority  of  certain  servants  of 
other  railroads  is  inadmissible  to  show  that  a  certain  serv- 
ant of  defendant  had  a  certain  authority. — Texas  &  P. 
R.  Co.  v.  Reed,  88  Tex.  439,  31  S.  W.  1058. 

A  custom  or  usage  of  trade  can  be  established  by 
specific  instances,  provided  they  are  sufficiently  numer- 
ous to  indicate  a  fairly  regular  course  of  business,  where 
they  occur  under  similar  circumstances. — Broussard  v. 
South  Texas  Rice  Co.,  (Tex.  Civ.  App.),  120  S.  W.  587. 

Custom  must  be  shown  by  direct  testimony  and  not  by 
opinion  or  reputation. — Standard  Paint  Co.  v.  San  An- 
tonio Hardware  Co.,  (Tex.  Civ.  App.),  136  S.  W.  1150. 

Article  7. 

motive,    preparation,    sursequent    conduct,    explanatory 

statements,   etc. 

When  there  is  a  question  whether  any  act  was 
done  by  any  person,  the  following  facts  are 
deemed  to  be  relevant,  that  is  to  say — 

any  fact  which  supplies  a  motive  (a)  for  such 
an  act,  or  which  constitutes  preparation  for  it,  (b) 
[or  discloses  an  intention  or  design]. 

any  subsequent  conduct  of  such  person  appar- 
ently influenced  by  the  doing  of  the  act,  and  any 
act  done  in  consequence  of  it  by  or  by  the  author- 
ity of  that  person,  (c) 


a  Illustrations   (a),   r(ab),   (ac),   (ad),   (ae),    (af)    ;md    (ag),] 
b  Illustration    (b). 
c  Illustrations    (c),    (d)    and    (e). 

[Defendant   not  compellable   to   testify  against   himself,   see 
infra.   Article   120.] 


58  MOTIVE,  PREPARATION,  ETC. 


Illustrations. 

(a)  The  question  is,  whether  A  murdered  B. 

The  facts  that,  at  the  instigation  of  A,  B  murdered  C 
twenty-five  years  before  B's  murder,  and  that  A  at  or  before 
that  time  used  expressions  showing  malice  against  C,  are 
deemed  to  be  relevant  as  showing  a  motive  on  A's  part  to 
murder   B. — 1 

(a  b)  [The  question  is,  whether  A  burned  a  certain 
building. 

The  fact  that  A  had  excessive  insurance  upon  the  build- 
ing is  relevant,  as  showing  that  A  had  a  motive  to  destroy 
it.]— 2. 

(a  c)  [The  question  is,  whether  defendant  affixed  his  sig- 
nature   to   a   certain    note. 

Evidence  tending  to  show  that  the  note  was  given  in  re- 
newal of  another  note  signed  by  defendant  with  others  is 
relevant   to   show   motive.] — 3 

(a  d)  [The  question  is,  whether  A  or  another  shot  deceased 
in  a  fight. 

Evidence  that  A  and  deceased  had  recently  been  opposing 
candidates  for  office  at  an  election,  wherein  deceased  won,  is 
relevant  on   the   question   of  motive.] — 4 

(a  e)  [The  question  is,  whether  A  procured  the  murder  of 
his  wife. 

The  fear  that  his  wife  was  about  to  become  cognizant  of 
the  fact  that  20  years  before  he  had  made  way  with  a  for- 
mer wife  and  absconded  from  a  distant  state,  is  relevant  on 
the  issue  of  motive  to  conspire  to  secure  her  death.] — 5 

(a  f)  [The  question  is,  whether  A  committed  incest.  Evi- 
dence of  prior  and  subsequent  intercourse  between  the  par- 
ties is  relevant  as  proof  of  emotion  or  motive.] — 6 

(a  g)  [The  question  is,  whether  accused  killed  his  sister- 
in-law.  The  fact  that  he  had  procured  large  insurance  upon 
her  life  is  relevant  to  show  motive.] — 7 

(b)  The  question  is,  whether  A  committed  a  crime. 

The  fact  that  A  procured  the  instruments  with  which  the 
crime   was   committed   is   deemed   to  be   relevant. — 8 

(c)  A  is  accused  of  a  crime. 

The  facts  that,  either  before,  or  at  the  time  of,  or  after 
the  alleged   crime,   A   caused   circumstances   to   exist   tending 

1  R.  v.  Clewes,   i  C.  &  P.   221. 

2  [State  v.  Cohn,  9  Nev.  179;  Commonwealth  v.  McCarthy, 
119   Mass.    354.] 

3  [German-American  Bank  v.  Stickle,  59  Neb.  321,  80  N. 
W.    910.] 

4  [Johnson  v.  State,    (Tex.  C.  R.),  149   S.  W.  165.] 

5  [State  v.  Kent   (Panacoast),  5  N.  D.   516,  67  N.  W.   1052.] 

6  [Burnett  v.  State,  32  Tex.  Cr.  R.  86,  22  S.  W.  87.] 

7  [Van  Wyk  v.  People,  45  Colo.  1,  99  P.  1009.] 

8  R.  v.   Palmer,    (passim). 


MOTIVE,   PREPARATION,   ETC.  59 

to  give  to  the  facts  of  the  case  an  appearance  favorable  to 
himself,  or  that  he  destroyed  or  concealed  things  or  papers, 
or  prevented  the  presence  or  procured  the  absence  of  persons 
who  might  have  been  witnesses,  or  suborned  persons  to  give 
false  evidence,  are  deemed  to  be  relevant. — 9 

(d)  The  question  is,   whether  A  committed  a  crime. 

The  facts  that,  after  the  commission  of  the  alleged  crime, 
he  absconded  [or  concealed  himself],  or  was  in  possession,  of 
property  or  the  proceeds  of  property  acquired  by  the  crime, 
or  attempted  to  conceal  things  which  were  or  might  have 
been  used  in  committing  it,  and  the  manner  in  which  he  con- 
ducted himself  when  statements  on  the  subject  were  made 
in  his  presence  and  hearing,  are  deemed  to  be  relevant. — 10 

(e)  The  question  is,  whether  A  suffered  damage  in  a  rail- 
way accident. 

The  fact  that  A  conspired  with  B,  C  and  D  to  suborn  false 
witnesses  in  support  of  his  case  is  deemed  to  be  relevant 
(11),  as  conduct  subsequent  to  a  fact  in  issue  tending  to 
show  that  it  had  not  happened. 

MOTIVE. 

In   General. 

Evidence  of  motive  or  absence  of  motive  in  prosecutions 
for  murder  is  admissible,  but  proof  of  motive  is  not  indis- 
pensable.—Scott  v.  State,  109  Ark.  391,  159  S.  W.  1095; 
People  v.  Durrant,  116  Cal.  179,  48  P.  75;  People  v.  Pre- 
sold, 154  Cal.  363,  97  P.  871;  People  v.  Knapp,  16  Cal. 
App.  682,  117  P.  792;  People  v.  Sainz,  62  Cal.  242,  121  P. 
922;   Millican  v.  State,  63  Tex.  Cr.  R.  440,  140  S.  W.  1136. 

A  person  may  testify  to  his  motive  when  that  is  in 
issue. — Bowers  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  82  Kan. 
95,  107  P.  777;  Thoresen  v.  St.  Paul  &  Tacoma  Lumber 
Co.,  73  Wash.  99,  131  P.  645. 

Arkansas.  "The  jury  were  sitting  in  judgment  upon  an 
act  which  in  point  of  law  was  to  be  essentially  charac- 
terized by  the  motive  of  the  heart  which  prompted  it. 
These  in  the  order  of  Providence  are  hidden  and  beyond 
the  reach  of  human  law,  until  developed  by  acts  of  com- 
mission or  of  omission  which  present  them  to  its  judg- 
ment   in  determining    the  quality  of  the  act    brought    in 

(9)  R.  v.  Patch,  Wills,  Circ.  Ev.  230;  R.  v.  Palmer  ub.  sup. 
(passim). 

(10)  Common  practice. 

(11)  Moriarty  v.  London,  Chatham  &  Dover  Ry.  Co.,  L.  R. 
5  Q.  B.  314;  compare  Gery  v.  Redman,  L.  R.  1  Q.  B.  D.  161. 


60  MOTIVE,  PREPARATION,  ETC. 

question.  Every  act,  then,  of  either  class,  which  in  the 
range  of  probability  could  cast  a  ray  of  light  upon  the 
motive  which  produced  the  homicide  in  question,  was 
legitimately  within  the  range  of  the  investigation,  although 
occurring  at  an  antecedent  time  or  at  another  place." — 
Austin  v.  State,  14  Ark.  560. 

The  fact  that  an  indictment  had  been  found  against 
defendant  for  assaulting  deceased  is  admissible  to  show 
motive.— Ford  v.  State,  96  Ark.  582,  132  S.  W.  995. 
California.  Prisoner  is  entitled  to  have  the  fact  of 
absence  of  apparent  motive  for  the  perpetration  of  a 
crime  weighed  by  the  jury. — People  v.  Ah  Fung,  17  Cal. 
377. 

"The  conduct  of  defendant  towards  the  woman  with 
whom  he  had  lived  as  his  wife  and  for  whose  murder  he 
was  on  trial,  was  not  irrelevant.  Resulting  as  it  seems 
to  have  done,  at  times,  in  quarrels  and  alienations  between 
them  of  such  a  character  as  to  drive  the  woman  from 
her  house,  they  were  in  themselves  circumstances,  in  con- 
nection with  the  circumstances  of  the  homicide,  for  the 
consideration  of  the  jury.  They  tended  to  show  the  state 
of  the  defendant's  feelings  towards  the  woman  and  his 
treatment  of  her,  and,  in  some  degree  to  show  a  motive 
for  taking  her  life." — People  v.  Kern,  61  Cal.  244. 

Proof  of  motive  is  never  indispensable  to  a  conviction. 
—People  v.  Durrant,  116  Cal.  179,  48  P.  75. 

Bribery.  The  bribing  of  other  members  of  council  ad- 
mitted to  show  motive. — People  v.  Glass,  158  Cal.  650,  112 
P.  281,  295. 

Where  evidence  of  collateral  facts  tends  to  prove  the 
commission  of  a  distinct,  substantive  offense,  it  is  never- 
theless admissible,  if  it  has  a  direct  tendency,  in  view  of 
the  surrounding  circumstances,  to  prove  the  motive  or  in- 
tent or  other  material  fact. — People  v.  Cook,  148  Cal.  341, 
83  P.  43;  People  v.  Grow,  16  Cal.  App.  147,  116  P.  369. 

Evidence  that  defendant  was  a  member  of  a  union  en- 
gaged in  maintaining  a  strike  declared  against  works  at 
which  prosecuting  witness  was  employed  as  strikebreaker, 
admissible.— People  v.  Grow,  16  Cal.  App.  147,  116  P.  369. 

In  a  prosecution  for  murder  of  a  non-union  worker,  evi- 
dence of  the  existence  of  a  strike  by  a  labor  union  of 


MOTIVE,   PREPARATION,  ETC.  61 

which  accused  was  a  member  is  admissible. — People  v. 
O'Bryan,  165  Cal.  55,  130  P.  1042. 

Idaho.  In  a  prosecution  instigated  by  a  mother  for  rape 
of  her  daughter,  evidence  of  quarrels  between  the  mother 
and  defendant  is  admissible. — State  v.  Johnson,  26  Ida. 
609,  144  P.  784. 

Kansas.  In  quo  warranto  to  remove  a  county  attorney 
charged  with  violating  his  duty  in  respect  to  the  enforce- 
ment of  the  prohibitory  liquor  law,  evidence  that  the 
saloons  were  run  openly  and  publicly  in  the  defendant's 
county  is  relevant,  as  bearing  upon  his  motives. — State 
v.  Trinkle,  70  Kan.  396,  78  P.  854. 

In  an  action  by  a  wife  against  her  father-in-law  for 
alienation  of  affections,  she  may,  in  order  to  show  motive, 
testify  that  defendant  had  made  improper  advances  to 
her  which  she  repelled.— White  v.  White,  76  Kan.  82,  90 
P.  1087. 

Montana.  Evidence  as  to  the  amount  of  money  deceased 
had  deposited  in  a  bank  is  admissible  to  show  motive, 
where  it  appears  that  accused  had  probable  knowledge 
of  it.— State  v.  Lucey,  24  Mont.  295.  61  P.  994. 

It  is  not  necessary  for  the  state  to  prove  a  motive. 
The  presence  or  absence  of  it4B  not  conclusive,  but  is  to 
be  considered  as  any  other  evidentiary  fact  bearing  upon 
the  ultimate  question  of  the  guilt  or  innocence  of  the  de- 
fendant, and  is  more  or  less  significant  in  the  light  of  the 
facts  of  the  particular  case. — State  v.  Vanella,  40  Mont. 
326,  106  P.  364. 

Nebraska.  In  a  prosecution  for  abortion,  the  fact  of  de- 
fendant's recent  intercourse  with  the  woman  is  admis- 
sible as  showing  an  intent  rendering  the  deed  more 
probable.— Dixon  v.  State,  46  Neb.  298,  64  N.  W.  962. 

The  fact  that  plaintiff  might  have  earned  satisfactory 
wages  at  the  time  he,  as  alleged,  engaged  to  serve  de- 
fendant for  his  board  and  lodging,,  is  admissible  to  show 
motive. — Blomgren  v.  Anderson,  48  Neb.  240,  67  N.  W. 
186. 

Nevada.  In  an  action  for  divorce,  the  husband's  cruelty 
after  the  suit  was  begun  is  admissible  to  throw  light  on 
his  previous  acts. — Gardner  v.  Gardner,  23  Nev.  207,  45 
P.  139. 


62  MOTIVE,   PREPARATION,   ETC. 

North  Dakota.  A  motive  to  commit  a  crime  that  might 
be  all  powerful  with  one  man  might  be  of  little  or  no 
force  with  another,  depending  upon  temperament  and  nat- 
ural or  acquired  tendencies,  and  particularly  upon  the 
predisposition  to  commit  the  crime. — State  v.  Kent,  5  N. 
D.   516,   67  N.  W.  1052. 

Oklahoma.  "Motive  to  commit  crime,  if  shown,  may  in 
many  cases  be  sufficient  alone,  almost,  to  induce  a  belief 
in  guilt.  Upon  the  other  hand,  where  no  motive  for  the 
commission  of  a  crime  can  be  shown  it  is  almost  impos- 
sible to  convince  the  mind  of  guilt.  Men  do  not  ordi- 
narily commit  grave  crimes,  unless  there  is  in  their  minds 
a  motive  strong  enough  to  overcome  the  natural  repug- 
nance against  crime,  and  the  fear  of  punishment  which 
usually  follows  detection.  This  view  of  this  question  is 
so  universally  recognized  as  being  true  that  it  has  be- 
come incorporated  into  the  law,  and  in  almost  all  cases 
where  the  guilt  of  a  defendant  depends  upon  the  facts 
and  circumstances  in  proof  in  the  case  the  court  instructs 
the  jury  to  consider  the  motive  or  lack  of  motive  which 
the  proof  shows  may  or  may  not  exist  in  the  mind  of  a 
defendant  on  trial  charged  with  crime." — Son  v.  Territory, 
5  Okl.  526,  49  P.  923. 

Oregon.  Decedent's  daughter  may  testify  that  accused 
a  few  months  before  the  homicide  had  made  an  attempt 
to  criminally  assault  her. — State  v.  Wilkins,  72  Or.  77, 
142  P.   589. 

Texas.  In  a  suit  for  slander  by  charging  incest,  evidence 
of  intercourse  of  the  parties  a  few  months  before  is  admis- 
sible.—Wood  v.  State,  32  Tex.  Cr.  R.  476,  478,  24  S.  W. 
284. 

In  a  prosecution  for  murder  evidence  is  admissible  of 
illicit  relations  between  deceased  and  a  sister  of  defend- 
ant—Baum  v.   State,   60   Tex.   Cr.   R.   638,   133   S.  W.   271. 

Arson.  Insurance  policy  and  assignment  to  defendant 
admissible,  after  foundation  laid  showing  defendant,  as 
agent  of  insurer,  had  building  insured. — Arnold  v.  State, 
(Tex.  Cr.  R.),  168  S.  W.  122. 

In  prosecution  for  murder  of  wife,  state  may  rebut  hus- 
band's defense  of  deceased's  improper  relations  with  his 
wife  by  proof  of  her  good  reputation. — Eads  v.  State, 
(Tex.  Cr.  R.),  176  S.  W.  574. 


MOTIVE,  PREPARATION,  ETC.  63 

Washington.  In  an  action  to  recover  commission  on  the 
sale  of  goods,  evidence  of  defendant's  profits  admitted  to 
show  what  was  a  reasonable  commission. — Wheeler  v.  F. 
A.  Buck  &  Co.,  23  Wash.  679,  63  P.  566. 
Wyoming.  Prosecution  for  murder.  Defendant's  assault 
on  decedent's  father  shortly  before  is  relevant  to  show 
motive.— Horn  v.  State,  12  Wyo.  80,  73  P.  705. 
Desire  for  Money. 

The  possession  of  money  by  the  deceased  may  be  shown 
as  a  motive  for  the  desire  to  kill.— Keffer  v.  State,  12  Wyo. 
49,  73  P.  556;  Spates  v.  State,  62  Tex.  Cr.  R.  532,  138 
S.-W.  393. 

California.  In  a  prosecution  for  the  murder  of  a  brother- 
in-law,  where  the  want  of  money  was  alleged  as  the 
motive,  letters  showing  that  accused  needed  money  are  ad- 
missible in  evidence. — People  v.  Soeder,  150  Cal.  12,  87 
P.  1016. 

Colorado.  In  a  prosecution  for  murder,  the  fact  that  de- 
fendant and  his  wife  had  obtained  large  insurance  on  the 
life  of  deceased,  and  false  statements  of  the  wife  to  ob- 
tain it,  may  be  shown. — Van  Wyk  v.  People,  45  Colo.  1,  99 
P.  1009. 

Nebraska.  Where  the  charge  was  murder  in  a  robbery, 
the  state  may  show  that  deceased  and  his  wife  had  a  con- 
siderable sum  of  money  which  they  had  put  away  for 
safe  keeping,  though  defendant  was  not  present  at  the 
time.— Shumway  v.  State,  82  Neb.  152,  117  N.  W.  407. 

The  fact  that  money  was  in  possession  of  the  deceased 
on  the  afternoon  he  was  murdered  may  be  shown,  although 
none  ef  it  was  traced  into  the  possession  of  accused. — 
Fouse  v.  State,  83  Neb.  258,  119  N.  W.  478. 
Texas.  In  the  prosecution  for  a  murder  in  an  attempt 
at  uxorcide  by  putting  arsenic  in  coffee,  the  defendant's 
placing  of  insurance  on  the  life  of  his  wife,  and  his  mania 
for  insurance,  as  evidenced  by  insurance  on  horse  and 
against  accident,  is  admissible. — Bailey  v.  State,  65  Tex. 
Cr.  R.  1,  144  S.  W.  996. 

The  fact  that  one  accused  of  murder  of  one  in  possession 
of  money  was  without  funds  before  the  homicide,  and 
was  spending  money  freely  thereafter  is  admissible. — 
McCue  v.  State,  (Tex.  Cr.  R.),  170  S.  W.  280. 


64  MOTIVE,  PREPARATION,  ETC. 

Wyoming.  In  a  prosecution  for  murder  by  a  husband, 
evidence  of  the  amount  of  property  the  wife  had  at  the 
time  of  their  marriage  one  year  before  is  admissible. — 
Jenkins  v.  State,  22  Wyo.  34,  134  P.  260. 

Activities  of   Deceased   Against  Accused. 

The  fact  that  decedent  had  testified  or  was  about  to 
testify  against  defendant  in  a  suit  or  prosecution,  or  was 
or  had  been  engaged  in  a  prosecution  or  suit  against  him, 
or  others  connected  with  him,  is  admissible. — Dunn  v. 
State,  2  Ark.  229;  Spivey  v.  State,  114  Ark.  267,  169  S. 
W.  949;  State  v.  Geddes,  22  Mont.  68,  55  P.  919;  State  v. 
Finch,  54  Or.  482,  103  P.  505;  Barkman  v.  State,  41  Tex. 
Cr.  R.  105,  52  S.  W.  73;  Porch  v.  State,  50  Tex.  Cr.  R.  335, 
99  S.  W.  102;  Canon  v.  State,  59  Tex.  Cr.  R.  398,  128  S. 
W.  141;  Mitchell  v.  State,  65  Tex.  Cr.  R.  545,  144  S.  W. 
1006;  Foster  v.  State,  68  Tex.  Cr.  R.  38,  150  S.  W.  936. 
Oklahoma.  The  fact  that  deceased  had  been  trying  to 
implicate  defendant  in  certain  robberies,  admitted. — Son 
v.  Territory,  5  Okl.  526,  49  P.  923. 

Tbe  motive  of  defendant  in  a  homicide  case  may  be 
shown  by  admitting  in  evidence  the  part  that  deceased 
had  taken  in  disbarment  proceedings  against  defendant 
for  conduct  unbecoming  an  attorney. — State  v.  Finch,  54 
Or.  482,  103  P.  505. 

Texas.  In  a  trial  for  murder,  the  fact  that  deceased  had 
testified  against  accused  at  an  inquest  held  over  the  death 
of  a  certain  person,  admitted. — Barkman  v.  State,  41  Tex. 
Cr.  R.  105,  52  S.  W.  73. 

It  is  permissible  for  the  state  to  show  as  a  motive  for 
murder,  that  deceased  had  testified  against  defendant's 
brother  at  a  trial  for  larceny  of  hogs. — Harrison  v.  State, 
(Tex.  Cr.  R.),  132  S.  W.  783. 

Statement  by  third  person  of  result  of  election  of  de- 
ceased, defendant's  opponent,  to  an  office,  so  that  de- 
fendant knew  it.— Kelly  v.  State,  68  Tex.  Cr.  R.  317,  151 
S.  W.  304. 

Utah.  Murder.  An  officer's  statement  to  accused,  that 
deceased  would  be  a  witness  against  him  for  burglary, 
admissible.— State  v.  Inlow,  44  Utah  485,  141  P.  530. 

Situation  of  Accused. 
California.     In  a  prosecution  with  intent  to  kill  a  jailer 
the  fact  that  defendant  was  in  jail  on  a  charge  of  burglary 


MOTIVE,   PREPARATION,   ETC.  65 

is  admissible  to  show  motive. — People  v.  Valliere,  123 
Cal.  576,  56  P.  433. 

Murder  of  policeman.  That  accused  was  a  fugitive 
from  justice,  for  having  killed  an  uncle  in  Greece,  ad- 
mitted.—People  v.  Prantikos,  164  Cal.  113,  127  P.  1029. 
Colorado.  Assault  with  intent  to  murder.  Evidence  of 
other  assaults  when  sheriff  and  his  posse  were  trying  to 
arrest  defendants  about  an  hour  later,  admitted. — War- 
ford  v.  People,  43  Colo.  107,  96  P.  556. 

Utah.  In  a  prosecution  for  the  murder  of  one  of  a  posse, 
defendant's  prior  commission  of  a  robbery  for  which  the 
posse  was  pursuing  him  is  admissible. — State  v.  Morgan, 
22  Utah  162,  61  P.  527. 

Washington.     Possession    of    a    burglar's    jimmy    may    be 
shown    in   a    prosecution    for   the    murder   of   an    officer. — 
State  v.  Ness,  71  Wash.  339,  128  P.  664. 
Threats  and   Quarrels. 

In  prosecutions  for  murder  and  prosecutions  or  suits  for 
other  deeds  of  violence,  evidence  of  former  altercations 
and  bad  feeling  of  defendant  with  deceased  or  other  per- 
son are  admissible,  together  with  threats  and  expressions 
of  ill  will.— Atkins  v.  State,  16  Ark.  568,  581;  People  v. 
Chaves,  122  Cal.  134,  54  P.  596;  People  v.  Wilson,  23  Cal. 
App.  513,  138  P.  971:  Satham  v.  Muffle,  23  N.  D.  63,  135  N. 
W.  797;  Fifer  v.  State,  64  Tex.  Cr.  R.  203,  141  S.  W.  989; 
Gradington  v.  State,  69  Tex.  Cr.  R.  595,  155  S.  W.  210;  Cor- 
hitt  v.  State,  72  Tex.  Cr.  R.  396,  163  S.  W.  436;  Gant  v.  State, 
78  Tex.  Cr.  R.  279,  165  S.  W.  142;  Coffman  v.  State,  73  Tex. 
Cr.  R.  295,  165  S.  W.  939;  Hill  v.  State,  (Tex.  Cr.  R.), 
168  S.  W.  864. 

Arkansas.  In  a  prosecution  for  the  murder  of  a  para- 
mour, violence  of  accused  against  their  child  not  long  be- 
fore the  murder  is  admissible. — Edmonds  v.  State,  34  Ark. 
720,  730. 

Colorado.  In  a  prosecution  for  the  murder  of  a  sister- 
in-law,  evidence  of  ill  treatment  of  deceased  by  accused 
is  admissible. — Van  Wyk  v.  People.  45  Colo.  1,  99  P.  1009. 

In  a  prosecution  for  assault  and  battery,  previous  direc- 
tions of  defendant  to  have  the  prosecuting  witness  as- 
saulted is  admissible  on  the  question  of  motive. — Rice 
v.  People,  55  Colo.  506,  136  P.  74. 


66  MOTIVE,  PREPARATION,   ETC. 

North  Dakota.  Evidence  of  former  altercations  with  one 
of  the  defendants  is  admissible  on  the  question  of  malice 
in  an  assault  and  battery. — Satham  v.  Muffle,  23  N.  D.  63, 
135  N.  W.  797. 

Oregon.  Threats  to  shoot  a  witness  just  after  the  af- 
fray, on  account  of  which  defendant  is  charged,  is  admis- 
sible to  show  malice. — State  v.  Garland,  5  Or.  216. 

Threats  of  defendant  against  deceased,  and  use  of  dan- 
gerous weapon,  admitted. — State  v.  Erickson,  57  Or.  262, 
310  P.  785. 

Texas.  The  details  of  former  quarrels  are  not  admis- 
sible.—Holley  v.  State,  39  Tex.  Cr.  R.  301,  46  S.  W.  39. 

Relations  of  Parties. 

In  rape  and  kindred  crimes,  evidence  of  the  relations 
of  the  parties  and  of  similar  acts  before  and  after  the  act 
charged  is  admissible. — Pleasant  v.  State,  15  Ark.  624, 
643;  People  v.  Edwards,  (Cal.),  73  P.  416;  State  v.  Bow- 
ser, 21  Mont.  133,  53  P.  179;  State  v.  Peres,  27  Mont.  358, 
71  P.  162;  State  v.  Way,  5  Neb.  283;  United  States  v. 
Griego,  11  N.  M.  392,  72  P.  20;  State  V.  Robinson,  32  Or. 
43,  48  P.  357;  Richardson  v.  State,  34  Tex.  142;  Rogers  v. 
State,  40  Tex.  Cr.  R.  355,  50  S.  W.  338;  Duncan  v.  State, 
40  Tex.  Cr.  R.  591,  51  S.  W.  372;  Smith  v.  State,  (Tex. 
Cr.  R.),  73  S.  W.  401;  United  States  v.  Musser,  4  Utah  153, 
7  P.  389;  State  v.  Neel,  23  Utah  541,  65  P.  494. 
Utah.  In  a  prosecution  for  polygamous  marriage,  evi- 
dence is  admissible  of  the  relations  of  defendant  to  the 
women  in  question  prior  to  the  time  of  the  statute  and 
of  the  indictment. — United  States  v.  Smith,  5  Utah  232, 
14  P.  291;  United  States  v.  Peay,  5  Utah  263,  14  P.  342; 
United  States  v.  Groesbeck,  4  Utah  487,  11  P.  542. 

Where  the  offense  consists  of  illicit  intercourse  between 
the  sexes,  or  in  the  case  of  incest,  adultery  or  seduction, 
courts  have  relaxed  the  rule  that  the  commission  of  other 
offenses  cannot  be  shown,  and  hold  that  previous  acts  of 
improper  familiarity  between  the  parties,  occurring  prior 
to  the  alleged  offense,  are  admissible  as  explaining  the 
acts  and  as  having  a  tendency  to  render  it  more  probable 
that  the  act  charged  in  the  information  was  committed. — 
State  v.  Hilberg,  22  Utah  27,  61  P.  215. 


MOTIVE,   PREPARATION,   ETC.  67 

Meretricious   Relations. 

In  prosecutions  for  murder,  evidence  of  improper  rela- 
tions of  accused  with  deceased,  or  with  husband  or  wife 
of  deceased,  is  admissible  to  show  motive: 
California:      People  v.  Botkin,  9  Cal.  App.  244,  98  P.  861 
(improper   relations   between    defendant   and   husband   of 
deceased) ;   People  v.  Brown,  130  Cal.  591,  62  P.  1072  (de- 
fendant's relations  with  wife  of  deceased). 
Kansas:     State  v.   Reed,  53  Kan.  767,  37  P?  174    (same). 
Oklahoma:     Miller  v.  State,  9  Okl.  Cr.  255,  131  P.  717. 
Texas:     Millner  v.   State,   72   Tex.   Cr.   R.   45,   162   S.   W. 
348   (relations  with  wife  of  deceased  shown  by  letters  of 
wife  to  accused).  » 

In  prosecutions  for  murder  of  husband,  wife,  rival,  or 
paramour,  improper  relations  of  accused  may  be  evidenced 
to  show  motive: 

Nebraska:  St.  Louis  v.  State,  8  Neb.  405,  411,  1  N.  W. 
371  (intimacy  with  another  woman  both  before  and  after 
murder  of  wife). 

Nevada:  State  v.  Larkin,  11  Nev.  314,  328  (relations  of 
accused  and  deceased  with  a  certain  woman  shown). 
Oklahoma:  Miller  v.  State,  9  Okl.  Cr.  255,  131  P.  717 
murder  of  girl  by  married  man;  illicit  relations  with  her, 
and  attempt  at  abortion,  shown) ;  Brown  v.  State,  9  Okl. 
Cr.  382,  132  P.  359  (murder  of  husband;  illicit  relations 
with  other  men). 

Texas:  Rice  v.  State.  54  Tex.  Cr.  R.  149,  112  S.  W. 
299  (murder  of  wife;  improper  relations  with  woman  two 
years  before);  Bailey  v.  State,  65  Tex.  Cr.  R.  1,  144  S. 
W.  996  (deceased  killed  by  arsenic  in  coffee  intended  for 
wife  of  accused:  latter's  correspondence  with  various 
women  admitted);  Millner  v.  State,  (Tex.  Cr.  R.),  169 
S.  W.  899  (accomplice  to  murder  of  husband;  her  prior 
illicit  relations  admissible). 

Repetition   of   Defamatory   Words. 

In  suits  for  libel  and  slander,  repetition  of  the  defam- 
atory words,  or  utterances  of  similar  import,  even  after 
suit  begun,  are  admissible  to  show  malice. — Chamberlin 
v.  Vance,  51  Cal.  75,  84;  Harris  v.  Zanone.  93  Cal.  59,  28 
P.  845;  Hearne  v.  De  Young.  119  Cal.  670,  52  P.  150; 
Bee  Pub.  Co.  v.  Shields.  68  Neb.  750,  94  N.  W.  1029;  Adams 
v.  State,  62  Tex.  Cr.  R.  426,  138  S.  W.  117. 


68  MOTIVE.   PREPARATION,   ETC. 

California.  A  repetition  of  the  libel  complained  of  after 
the  commencement  of  the  action,  and  a  plea  of  truth  with 
an  attempt  to  substantiate  such  charge,  are  inadmissible. 
— Westerfield  v.  Scripps,  119  Cal.  607,  51  P.  958. 

In  a  suit  for  libel  and  slander  statements  of  defendant 
at  a  different  time  than  that  charged  and  making  a  charge 
of  a  different  nature  is  inadmissible. — Stern  v.  Loewen- 
thal,  77  Cal.«840,  19  P.  579. 

Evidence   of  Other  Crimes. 

Evidence  of  other  crimes  may  be  admissible,  to  estab- 
lish motive.— People  v.  Kizer,  22  Cal.  App.  10,  133  P.  516; 
State  v.  Bowen,  43  Utah  iy,  134  P.  623. 
California.  Letters  showing  motive  to  obtain  money  by 
murder  admissible,  though  they  were  of  such  a  character 
as  to  prejudice  accused. — People  v.  Soeder,  150  Cal.  12, 
87  P.  1016. 

Oklahoma.  Testimony  which  tends  to  establish  intent 
or  malice  upon  the  part  of  defendant,  is  admissible  in 
evidence  when  of  substantive  value,  even  though  such  tes- 
timony may  disclose  the  commission  of  other  separate 
and  distinct  offenses. — Dykes  v.  State,  11  Okl.  Cr.  602, 
150  P.  84. 

Knowledge  Necessary  to  Motive. 
Oklahoma.  "A  motive  cannot  operate  to  influence  until 
the  facts  which  create  the  motive  exist.  The  facts  upon 
which  a  motive  is  based  cannot  operate  upon  the  mind 
until  they  are  known  by  the  party  against  whom  the 
motive  is  assigned.  If  one  person  should  contemplate 
and  undertake  a  great  wrong  against  another, — such  a 
wrong  as  would  induce  in  the  mind  of  the  person  at  whom 
it  was  directed  a  motive  to  kill, — and  yet  such  contemplated 
wrong  was  unknown  to  the  party,  it  cannot  be  justly  said 
that  a  motive  to  kill  could  exist,  because  the  party 
wronged  had  no  knowledge  of  the  facts  which  would  be 
necessary  to  create  the  motive." — Son  v.  Territory,  5  Okl. 
526,  49  P.  923. 

In  order  to  establish  a  motive  for  the  commission  of  a 
crime,  it  is  essential  that  the  facts  upon  which  the  motive 
is  assigned  shall  be  within  the  knowledge  of  the  party 
accused.  (Not  shown  that  defendant  knew  that  deceased 
was  attempting  to  fasten  responsibility  for  express  rob- 


MOTIVE,   PREPARATION,   ETC.  69 

beries  upon  him  and  others.) — Son  v.  Territory,  5  Okl.  526, 
49   P.  923. 

Texas.  Where  an  accused  defends  a  homicide  on  the 
ground  of  an  insult  to  his  wife  he  must  show  that  he 
knew  of  such  insult. — Young  v.  State,  59  Tex.  Cr.  R.  137, 
127  S.  W.  1058;  (see  Kirklin  v.  State,  73  Tex.  Cr.  R.  251, 
164  S.  W.  1016). 

ACTS   SHOWING    INTENTION    OR    DESIGN. 
In  General. 
Colorado.     Subsequent  conduct    is    relevant    to    show  the 
intent  with  which  a  man  left  his  wife. — Johnson  v.  John- 
son,  22  Colo.   20,   43   P.   130. 

Texas.  The  mental  condition  of  a  person  at  any  time 
prior  or  subsequent  to  the  execution  of  an  instrument  by 
him  is  relevant  as  bearing  upon  his  mental  condition  at 
that  time. — Williams  v.  Sapieha,  (Tex.  Civ.  App.),  62  S. 
W.   72. 

On  the  issue  of  mental  disability  of  a  party  at  the  time 
of  the  execution  of  a  deed  his  entire  mental  history  is 
admissible  as  bearing  upon  his  mental  condition  at  the 
time  of  its  execution. — Williams  v.  Sapieha,  (Tex.  Civ. 
App.),  62  S.  W.  72. 

Acts  of  a  party  are  admissible  as  evidence  of  the  party's 
intention  to  establish  a  domicile. — International  &  G.  N. 
Ry.  Co.  v.  Anderson  County,  (Tex.  Civ.  App.),  174  S.  W. 
305. 

Threats   By   Person    Killed. 

In  cases  of  homicide,  where  it  is  in  issue  whether  or 
not  accused  or  deceased  was  the  aggressor,  evidence  of 
threats  by  deceased,  whether  communicated  to  defendant 
or  not,  are  relevant,  as  evidencing  a  plan  which  may  have 
been  carried  out : 

Arizona:  Nelson  v.  State,  16  Ariz.  165,  141  P.  704  (that 
deceased  was  armed  and  had  threatened  accused). 
Arkansas:  Jackson  v.  State,  103  Ark.  21,  145  S.  W.  559 
(uncommunicated  threats  inadmissible  except  to  show  who 
was  the  aggressor) ;  Carter  v.  State,  108  Ark.  124,  156  S. 
W.  443  (uncommunicated  threats  just  prior  to  the  encoun- 
ter). 

Colorado:     Warfortt    v.     People,     41     Colo.    203.    92    P.    24 
(threats  communicated  or  uncommunicated). 
Oklahoma:     Foster  v.    State,   8   Okl.   Cr.    139,    126   P.   835 


70  MOTIVE,   PREPARATION,   ETC. 

(prior  threats  and  hostile  demonstrations  by  deceased  and 
associates,  whether  communicated  or  not) ;  Rogers  v. 
State,  8  Okl.  Cr.  226,  127  P.  365  (uncommunicated  threats 
admissible). 

Texas:  McMillan  v.  State,  66  Tex.  Cr.  R.  288,  146  S.  W. 
1190,  (that  a  certain  question  was  getting  warm,  that  a 
good  many  persons,  naming  accused,  were  getting  raw, 
and  that  there  would  likely  be  trouble  over  the  matter) ; 
Bankston  v.  State,  76  Tex.  Cr.  R.  504,  175  S.  W.  1068;  Howe 
v.  State,  (Tex.  Cr.  R.),  177  S.  W.  497;  Hammons  v.  State, 
(Tex.  Cr.  R.),  177  S.  W.  493. 

Oklahoma.  Threats,  either  communicated  or  uncommun- 
icated, are  neither  relevant  nor  material  in  the  trial  of  a 
person  charged  with  homicide,  unless  some  evidence  is 
first  introduced  tending  to  show  that  at  the  time  of  the 
homicide  the  accused  acted  on  his  apparent  or  necessary 
self-defense.— Foster  v.  State,  11  Okl.  Cr.  25,  141  P.  449. 
Oregon.  Threats  made  indirectly  are  admissible.  (That 
deceased  proposed  to  witness  to  raise  a  posse  for  the  pur- 
pose of  hanging  defendant  and  others.) — State  v.  Tarter, 
26  Or.  38,  37  P.  53. 

Threats  are  admissible,  though  they  have  not  been  com- 
municated to  defendant,  when  the  evidence  leaves  the 
question  in  doubt  as  to  whether  the  defendant  or  deceased 
was  the  aggressor.— State  v.  Tarter,  26  Or.  38,  37  P.  53. 

Previous  threats  of  deceased  against  accused,  or  pre- 
vious unfriendly  acts  towards  him,  are  permitted  to  be 
shown  for  the  purpose  of  establishing  a  reasonable  ground 
for  belief  or  apprehension  by  accused  that  he  was  in  dan- 
ger of  death  or  great  bodily  harm  at  the  time  of  the  homi- 
cide.—State  v.  Porter,  32  Or.  135,  49  P.  964. 
Texas.  Where  deceased  has  made  threats,  his  declara- 
tions of  pacific  intent,  not  communicated  to  accused,  are 
inadmissible.— Johnson  v.  State,  67  Tex.  Cr.  R.  1,  148  S. 
W.  328. 

Washington.  Proof  of  an  overt  act  of  attack  on  the  part 
of  deceased,  and  that  defendant's  life  was  in  apparent 
imminent  danger  therefrom,  is  a  prerequisite  to  the  ad- 
mission of  threats,  or  of  the  dangerous  character  of  de- 
ceased.—State  v.  Cushing,  17  Wash.  544,  50  P.  712. 

PREPARATION. 
California.     On  a  trial  of  accused  of  attempting  to  poison 


MOTIVE,   PREPARATION,  ETC.  71 

his  rival  by  means  of  strychnine,  it  may  be  shown  that 
when  arrested  he  was  in  possession  of  chloroform. — 
People  v.  Cuff,  122  Cal.  589,  55  P.  407. 

In  a  prosecution  for  robbery,  the  fact  that  defendants 
had  registered  at  a  hotel  under  assumed  names  is  rele- 
vant.—People  v.  Kelly,  146  Cal.  119,  79  P.  846. 
Idaho.  Evidence  which  tends  to  show  preparation  and 
plan  for  the  commission  of  the  crime  charged  is  admissible 
as  tending  to  show  intent  and  purpose  to  commit  the  act, 
and  the  animus  of  the  person,  and  its  weight  and  credit 
are  entirely  for  the  jury.  (Practicing  at  shooting.) — 
State  v.  Marren,  17  Ida.  766,  107  P.  993. 
Kansas. — Possession  of  burglars'  tools  is  admissible  on 
the  question  of  preparation. — State  v.  Wayne,  62  Kan.  636, 
64  P.  68. 

Oklahoma.  Where  a  person  is  on  trial,  any  fact  is  ad- 
missible in  evidence  which  tends  to  prove  preparation  on 
his  part  to  commit  the  crime  with  which  he  is  charged. 
(Testimony  as  to  previous  occupation,  in  prosecution  for 
bootlegging.)— Terry  v.  State,  7  Okl.  Cr.  430,  122  P.  559. 

In  a  prosecution  for  the  murder  of  one  with  whom  de- 
fendant had  had  illicit  relations,  the  fact  that  accused  had 
"read  up"  on  medical  works  was  admissible  to  show  that 
he  intended  to  manufacture  a  defense  that  death  was 
caused  by  a  weak  heart  stimulated  by  strychnine. — Mil- 
ler v.  State,  9  Okl.  Cr.  255,  131  P.  717. 
Oregon..  In  a  prosecution  for  larceny  the  fact  that  de- 
fendant obtained  powder  with  which  to  start  the  fire  by 
breaking  the  lock  of  a  powder  house  and  entering  therein 
does  not  render  such  act  inadmissible.— State  v.  Roberts, 
15  Or.  187,  13  P.  896. 

Texas.  Evidence  that  a  week  before  the  homicide  ac- 
cused had  bought  the  knife  used  in  the  affray,  is  admis- 
sible.—Bradley  v.  State,  60  Tex.  Cr.  R.  398,  132  S.  W.  484. 

That  accused  had  purchased  shells  like  those  used  in 
the  homicide,  admissible. — Jones  v.  State,  (Tex.  Cr.  R.),  163 
S.  W.  81. 

SUBSEQUENT  CONDUCT. 
In  General. 

The  fact  that  accused  resisted  or  threatened  to  resist 
arrest  may  be   shown. — People  v.  Flannelly,   128   Cal.   83, 


72  MOTIVE,   PREPARATION,  ETC. 

60  P.  670;  Mitchell  v.  State,  52  Tex.  Cr.  R.  37,  106  S.  W. 
124;  Moreno  v.  State,  71  Tex.  Cr.  R.  460,  160  S.  W.  361; 
Walker  v.  State,  (Tex.  Cr.  R.),  169  S.  W.  1156. 
California.  The  flight  of  an  accomplice  by  breaking  away 
from  an  officer  while  they  were  both  being  conveyed  to 
jail,  after  the  criminal  enterprise  had  ended,  and  not  in 
furtherance  of  its  object,  cannot  be  admissible  in  evidence 
against  the  other. — People  v.  Stanley,  47  Cal.  113. 

Flight  on  the  part  of  a  person  accused  of  crime  is  a  cir- 
cumstance for  the  jury  to  consider  in  determining  the 
question  of  his  guilt  or  innocence,  but  it  does  not  give 
rise  to  a  legal  presumption  of  guilt. — People  v.  Wong  Ah 
Ngow,  54  Cal.  151. 

In  determining  whether  plaintiffs'  ancestor  executed  a 
deed  claimed  to  have  been  forged,  it  is  proper  to  consider 
the  subsequent  conduct  of  the  alleged  grantor  during  his 
lifetime,  whether  he  after  the  date  of  the  deed  set  up 
any  claim  to  the  property,  paid  taxes,  etc. — Haight  v. 
Vallet,  89  Cal.  245,  26  P.  897. 

The  fact  that  when  one  in  the  possession  of  stolen  goods, 
which  he  claimed  were  his,  was  released  by  the  officer, 
he  failed  to  return  and  claim  the  goods  is  admissible. — 
People  v.  Ashmead,  118  Cal.  508,  50  P.  681. 
Colorado.  The  demeanor  of  an  accused  during  the  trial 
is  admissible.— Boykin  v.  People,  22  Colo.  496,  45  P.  419. 
Kansas.  Whenever  a  fact  is  shown  which  tends  to 
prove  a  crime  upon  a  defendant,  and  any  explanation  of 
such  fact  is  in  the  nature  of  the  case  peculiarly  within 
his  knowledge  and  reach,  a  failure  to  offer  such  an  ex- 
planation must  tend  to  create  a  belief  that  none  exists. — 
State  v.  Grebe,  17  Kan.  458. 

The  demeanor  of  one  charged  with  crime,  at  or  near 
the  time  of  its  commission  or  of  his  arrest,  may  always 
be  shown;  and  the  testimony  of  the  officer  who  sub- 
poenaed and  took  defendant  before  the  coroner's  jury, 
that  "he  was  very  nervous  and  showed  a  great  deal  of 
fear,"  was  admissible. — State  v.  Baldwin,  36  Kan.  10,  12 
P.  318. 

Nebraska.  On  a  trial  for  bastardy,  the  fact  that  defend- 
ant offered  to  procure  medical  aid  to  get  rid  of  the  child 
is  relevant. — Golzmeyer  v.  Peterson,  (Neb.),  94  N.  W. 
974. 


MOTIVE,   PREPARATION,   ETC.  73 

Nevada.     Conflicting  statements  of  defendant  as  to  how 

possession   of   goods   was   obtained,   admissible. — State   v. 

En,  10  Nev.  277. 

New  Mexico.     The  flight  of  defendant  may  be  shown,  but 

it  does  not  raise  a  presumption  of  law  that  accused  is 

guilty.— Territory  v.  Lucero,  16  N.  M.  689,  120  P.  304. 

North    Dakota.     An    attempt  to  commit  suicide  does  not 

raise  against  defendant  any  presumption  of  guilt. — State 

v.  Coudotte,  7  N.  D.  109,  72  N.  W.  913. 

Oregon.     In  a  prosecution  for  embezzlement  the  fact  that 

accused  made  false  entries  of  accounts  may  be  shown. — 

State  v.  Reinhart,  26  Or.  466,  38  P.  822. 

Texas.     The  fact  of  defendant's  readiness  to  deliver  up  a 

hog  that  had  been  stolen  is  relevant. — Smith  v.  State,  42 

Tex.  444. 

The  fact  that  defendant's  attorney  attempted  to  suborn 
witnesses  may  not  be  shown,  where  there  is  no  proof  that 
such  act  was  authorized  by  defendant. — Luttrell  v.  State, 
40  Tex.  Cr.  R.  651,  51  S.  W.  930. 

Where  a  person  is  in  custody  for  a  crime,  his  silence 
cannot  be  used  against  him  as  a  confession  of  the  truth 
of  the  statements  made  in  his  presence.  (Refusal  to 
look  on  body  of  one  murdered,  inadmissible.)— Weaver  v. 
State,  43  Tex.  Cr.  R.  340,  65  S.  W.  534. 

The  frightened  appearance  of  defendant  after  tho 
crime  may  be  shown. — Bollen  v.  State,  48  Tex.  Cr.  R.  70, 
86  S.  W.  1025. 

The  fact  that  accused  voluntarily  returned  from  another 
state  where  he  was  found  with  the  missing  horses  is  ad- 
missible.—Serop  v.  State.  (Tex.  Cr.  R.),  154  S.  W.  557. 
Repair  of  Appliance  Causing  Injury. 
The  fact  that  after  the  happening  of  an  accident  repairs 
were  made,  or  other  changes  made  in  the  conditions  sur- 
rounding the  locus  in  quo,  is  inadmissible  to  show  negli- 
gence: 

California:  Limburg  v.  GJenwood  Light  Co.,  127  Cal. 
598,  60  P.  176  (repairing  defective  appliances);  Saffenfield 
v.  Main  St.  &  A.  P.  R.  Co.,  91  Cal.  48,  27  P.  590  (substitut- 
ing new  appliance  on  cars). 

Colorado:  Anson  v.  Evans,  19  Colo.  505,  19  P.  479  (sub- 
sequent   warning   to   employees). 


74  MOTIVE,   PREPARATION,   ETC. 

Oklahoma:     City  of  Wynnewood  v.  Cox,  31  Okl.  563,  122 
P.  528   (installation  of  additional  lightning  arresters). 
Texas:     Missouri  P.  R.  Co.  v.  Hennessey,  75  Tex.  155,  12 
S.  W.  608  (subsequent  lighting  of  railroad  crossing  where 
accident  occurred) ;   Gulf,  C.  &   S.  F.  R.  Co.  v.  Compton, 

75  Tex.  667,  13  S.  W.  667  (subsequent  precautions). 

Washington:  Christensen  v.  U.  T.  Line,  6  Wash.  75,  32 
P.  1018  (discharge  of  employee  causing  injury) ;  Bell  v. 
Washington  Cedar-Shingle  Co.,  8  Wash.  27,  35  P.  405 
(changing  machinery). 

In  an  action  for  injuries  sustained  through  defect  in 
a  sidewalk,  the  fact  that  subsequent  repairs  were  made 
is  inadmissible. — Giffen  v.  Lewiston,  6  Ida.  231,  55  P. 
545;  Carter  v.  Seattle,  21  Wash.  585,  59  P.  500. 
Arkansas.  The  repair  of  an  appliance  whereby  an  em- 
ployee is  injured  is  incompetent  to  show  negligence  in 
furnishing  him  with  a  defective  appliance. — St.  Louis,  I. 
M.  &  S.  Ry.  Co.  v.  Steed,  105  Ark.  205,  151  S.  W.  257. 
California.  In  a  libel  suit,  the  fact  that  the  reporter  re- 
sponsible for  the  libel  was  discharged  is  inadmissible. — 
Turner  v.  Hearst,  115  Cal.  394,  47  P.  129. 

Subsequent  precautions  after  a  boiler  explosion  may 
be  shown. — Kohn  v.  Triest-Rosenberg  Co.,  139  Cal.  340, 
73  P.  165. 

Colorado.  The  subsequent  construction  of  a  new  bridge 
in  a  different  manner  from  that  of  the  one  through  which 
a  train  broke,  amounted  to  an  admission  that  the  former 
one  was  improperly  constructed.— Kansas  Pac.  R.  Co.  v. 
Miller,  2  Colo.  442,  468. 

Plaintiff  was  allowed  to  prove  that,  subsequent  to  the 
accident,  defendant  posted  notices  at  its  works  warning 
all  employees  at  work  on  its  lines  and  circuits  to  quit 
such  work  at  4  o'clock,  and  not  to  continue  the  same  with- 
out notifying  the  officers  at  the  works.  Held,  that  the 
admission  of  this  evidence  was  erroneous. — Colorado 
Electric  Co.  v.  Lubbers,  11  Colo.  505,  19  P.  479. 
Kansas.  In  an  action  on  account  of  damages  sustained 
through  sparks  from  defendant's  engine,  a  subsequent 
change  of  smokestack  may  be  shown. — St.  Joseph  &  D. 
C.  R.  Co.  v.  Chase,  11  Kan.  47,  56. 


MOTIVE,   PREPARATION,   ETC.  75 

The  subsequent  removal  of  a  track  near  a  coal  shed 
where  an  accident  occurred  may  be  shown. — Atchison,  T. 
&  S.  F.  R.  Co.  v.  Retford,  18  Kan.  245. 

The  fact  that  a  defective  sidewalk  was  taken  up  by  a 
city  after  the  happening  of  an  accident  caused  thereby, 
and  another  substituted  therefor,  is  a  circumstance  which, 
in  connection  with  other  circumstances,  may  properly  be 
considered  as  tending  to  show  that  the  walk  removed 
was  defective;  but  it  is  no  evidence  that  the  city  author- 
ities had  knowledge  that  the  walk  was  defective  at  or 
before  the  time  of  the  accident.— City  of  Emporia  v. 
Schmidling,  33  Kan.  485,  6  P.  893. 

Injury  to  engineer  by  a  culvert  being  washed  out.  Sub- 
sequent enlargement  of  the  culvert  was  an  admission  that 
the  culvert  had  previously  been  too  small. — St.  Louis  & 
S.  F.  R.  Co.  v.  Weaver,  35  Kan.  412,  432,  11  P.  408. 

Repairs,  or  making  place  safe  after  injury,  may  be 
shown.— Howard  v.  Osage  City,  89  Kan.  205,  132  P.  187. 
Montana.  The  fact  that  a  sidewalk  has  been  repaired 
since  an  accident  is  admissible  only  to  show  the  condition 
of  the  sidewalk  at  the  time  of  the  accident,  and  not  to 
show  negligence. — Pullen  v.  City  of  Butte,  45  Mont.  46, 
121  P.  878. 

The  fact  of  subsequent  repairs  is  admissible  to  show 
defendant's  control  over  the  place  where  the  injury  was 
received. — Tipton  v.  Topeka  Ry.  Co.,  89  Kan.  451,  132 
P.  189. 

Oregon.  The  fact  of  repairs  upon  a  barbed  wire  fence 
causing  an  injury  may  be  shown  to  prove  ownership. — 
Siglin  v.  Coos  Bay  R.  &  E.  R.  &  Nav.  Co.,  35  Or.  79,  56 
P.  1011. 

Evidence  that  guards  had  been  subsequently  placed 
over  the  machinery  where  plaintiff  was  injured  is  inad- 
missible to  show  negligence  of  employer. — Love  v.  Cham- 
bers Lumber  Co.,  64  Or.  129,  129  P.  492. 

But  where  jury  have  viewed  the  place,  evidence  of  sub- 
sequent repairs  is  admissible  to  show  them  the  condition 
of  a  machine  at  the  time  of  injury. — Marien  v.  M.  J.  Walsh 
&  Co.,  64  Or.  583,  131  P.  505. 

Flight  or   Escape. 

In  prosecutions  for  crime,  particulars  concerning  the 
escape  or  flight  of  accused  may  be  shown: 


76  MOTIVE,   PREPARATION,   ETC. 

California:  People  v.  Winthrop,  118  Cal.  85,  50  P.  390 
(hiding,  taking  an  assumed  name,  and  carrying  around 
newspaper  accounts  of  the  crime) ;  People  v.  Schafer, 
161  Cal.  573,  119  P.  920  (efforts  to  get  another  to  assist 
in  escape). 

Idaho:  State  v.  Davis,  6  Ida.  159,  53  P.  678  (circumstances 
connected  with  flight). 

Kansas:  State  v.  Stewart,  65  Kan.  371,  69  P.  335  (flight, 
concealment,  disguise,  denial  of  identity,  and  change  of 
name). 

Montana:  State  v.  Lucey,  24  Mont.  295,  61  P.  994  (ef- 
forts to  apprehend  accused);  State  v.  Paisley,  36  Mont. 
237,  92  P.  566  (concealment) ;  State  v.  Rodgers,  40  Mont. 
248,  106  P.  3  (efforts  to  get  away  from  officers  at  police 
station). 

Nebraska:  McVey  v.  State,  55  Neb.  777,  76  N.  W.  438 
(unsuccessful   search   by   police). 

Oregon:  State  v.  Meyers,  59  Or.  537,  117  P.  818  (flight  and 
concealment). 

South  Dakota:  State  v.  Cherrington,  34  S.  D.  562,  149  N. 
W.  421   (forfeiture  of  bond). 

Texas:  Buchanan  v.  State,  41  Tex.  Cr.  R.  127,  52  S.  W. 
769  (attempted  flight  before  indictment) ;  McDonough  v. 
State,  47  Tex.  Cr.  R.  227,  84  S.  W.  594  (concealment  of 
name  and  identity) ;  Love  v.  State,  68  Tex.  Cr.  R.  228, 
150  S.  W.  920  (search  and  rewards);  Arnold  v.  State,  (Tex. 
Cr.  R.),  168  S.  W.  122  (indictment  and  order  of  forfeiture 
of  bond);  Grimes  v.  State,  (Tex.  Cr.  R.),  178  S.  W.  523 
(flight  and  inability  of  officers  to  find  him  for  three  years, 
though  circulars  sent  out) ;  Holt  v.  State,  39  Tex.  Cr. 
R.  282,  45  S.  W.  1016,  46  S.  W.  829  (arrest  of  co-conspirator 
in  act  of  going  to  Arizona  where  stolen  money  was  to  be 
divided);  Hawkins  v.  State,  58  Tex.  Cr.  R.  407,  126  S.  W. 
268  (running  away  from  prosecutor  next  day  after  procur- 
ing money  on  false  pretenses) ;  Gotcher  v.  State,  (Tex. 
Cr.  R.),  148  S.  W.  574   (flight  and  search). 

Flight  or  attempt  to  leave  jurisdiction  may  be  shown  as 
indicating  a  consciousness  of  guilt. — Burris  v.  State,  38 
Ark.  221;  People  v.  Lee  Dick  Lung,  129  Cal.  491,  62  P. 
71;  State  v.  Baird,  13  Ida.  29,  88  P.  233;  State  v.  Thomas, 
58  Kan.  805,  51  P.  228;  George  v.  State,  61  Neb.  669,  85  N. 
W.    840;    Pittman   v.    State,    8    Okl.    Cr.     58,    126    P.   696; 


MOTIVE,  PREPARATION,  ETC.  77 

State  v.  Osborne,  54  Or.  289,  103  P.  62;  Evans  v.  State, 
(Tex.  Cr.  R.),  76  S.  W.  467;  Perry  v.  State,  69  Tex.  Cr. 
R.  644,  155  S.  W.  263;  State  v.  Pettit,  74  Wash.  510,  133 
P.  1014. 

In  prosecutions  for  crime,  escape  or  attempts  to  escape 
of  accused,  and  search  for  him  may  be  shown. — People  v. 
Strong,  46  Cal.  302;  People  v.  Stanley,  47  Cal.  113;  People 
v.  Crowley,  13  Cal.  App.  322,  109  P.  493;  Kennedy  v.  State, 
71  Neb.  765,  99  N.  W.  645;  Russell  v.  State,  38  Tex.  Cr. 
R.  590,  44  S.  W.  159;  Taylor  v.  State,  49  Tex.  Cr.  R.  7, 
90  S.  W.  647;  Wilkerson  v.  State,  60  Tex.  Cr.  R.  388,  131 
S.  W.  1108;  State  v.  Morgan,  22  Utah  162,  61  P.  527; 
State  v.  Leroy,  112  Wash.  635,  112  P.  635  (escape  and  re- 
capture). 

Flight  to  escape  arrest  for  other  crimes  is  inadmis- 
sible.—People  v.  Vidal,  121  Cal.  221,  53  P.  508;  Damron 
v.  State,  58  Tex.  Cr.  R.  255,  125  S.  W.  396. 

The  fact  of  refusal  to  escape  or  voluntary  surrender 
is  inadmissible. — People  v.  Montgomery,  53  Cal.  576;  Peo- 
ple v.  Shaw,  111  Cal.  171,  43  P.  593;  Lewis  v.  State,  4 
Kan.  309. 

Arkansas.  That  defendant  tried  to  escape  identification 
may  be  shown. — Flanagin  v.  State,  25  Ark.  92. 
California.  Flight  from  the  scene  of  the  crime  cannot  be 
explained  by  the  defendant  until  the  prosecution  has 
proved  it  as  tending  to  establish  guilt. — People  v.  Clark. 
84  Cal.  573,  24  Pac.  313. 

The  fact  that  accused  was  booked  at  the  police  station 
under  an  assumed  name  is  admissible. — People  v.  Kelly, 
146  Cal.  119,  79  P.  846. 

Before  evidence  of  flight  of  one  accused  of  crime  is 
admissible  it  must  be  shown  that  he  knew  he  was  charged 
with  crime,  or  had  a  conscious  realization  of  guilt. — 
People  v.  Sainz,  162  Cal.  242,  121  P.  922;  People  v.  Brecker, 
20  Cal.  App.  205,  127  P.  666. 

Idaho.  Evidence  of  flight  of  an  accused  is  admissible  for 
the  purpose  of  showing  who  did  the  act,  but  not  to  de- 
termine the  grade  of  the  offense. — People  v.  Ah  Choy,  1 
Idaho  320. 

Evidence  of  flight  la  admissible  to  determine  the  degree 
of  homicide— State  v.  Lyons,  7  Idaho  530,  64  P.  236. 


78  MOTIVE,  PREPARATION,  ETC. 

Any  evidence  tending  to  show  reasons  for  flight  of  de- 
fendant accused  of  crime  admissible. — State  v.  Baird,  13 
Idaho  29,  88  P.  233. 

Kansas.  Prosecution  for  larceny,  printed  post  cards  de- 
scribing horse  stolen  and  offering  reward  for  horse  also 
describing  defendant,  mailed  by  sheriff  not  admissible  to 
show  search  for  defendant,  and  his  flight. — State  v.  Wood- 
ruff, 47  Kan.  151,  27  P.  842. 

Montana.  Evidence  of  efforts  made  to  apprehend  defend1 
ant  after  discovery  of  crime  admissible  to  show  his  flight 
and  concealment,  from  which  guilt  might  be  inferred. — 
State  v.  Lucey,  24  Mont.  295,  61  P.  994. 

North  Dakota.  A  presumption  of  guilt  arises  from  flight. 
This  presumption  will  have  more  or  less  force  according 
to  the  facts  and  circumstances  attending  it.  But  the 
flight,  with  its  attendant  facts  and  circumstances,  can 
always  go  to  the  jury  under  the  instructions  of  the  court 
as  to  how  its  effect  should  be  weighed. — State  v.  Kent, 
5  N.  D.   516,   67  N.  W.  1052. 

Oregon.     Whether  accused  attempted   flight  is  to  be  de- 
termined by  the  movements   of  defendant  and   not  of  a 
posse  — State  v.  Hogg,  64  Or.  57,  129  P.  115. 
Obstruction    of    Evidence. 

The  fact  that  a  party  to  a  suit  failed  to  produce  evi- 
dence, or  attempted  to  influence  or  repress  testimony,  is 
admissible    against   him: 

Arkansas:  Maxey  v.  State,  76  Ark.  276,  88  S.  W.  1009 
(assault  on  witness  the  day  before  trial). 
California:  Leese  v.  Clark,  29  Cal.  664  (refusal  to  pro- 
duce a  deed,  though  a  copy  proffered);  People  v.  Dole, 
122  Cal.  486,  51  P.  945  (failure  to  produce  evidence) ;  Peo- 
ple v.  Burke,  (Cal.  App.),  122  P.  435  (manufactured  testi- 
mony); People  v.  Bird,  21  Cal.  App.  76,  132  P.  1061  (at- 
tempt to  prove  false  alibi). 

Idaho:     State  v.  Marren,  17  Ida.  766,  107  P7"99lT"( fabrica- 
tion or  procuration  of  false  testimony). 
Montana:      State   v.    Mahoney,     24     Mont.     281,    61   P.    647 
(stifling  evidence). 

Nebraska:  Blair  v.  State,  72  Neb.  501,  101  N  W.  17 
(same);  Woodruff  v.  State,  72  Neb.  815,  101  N.  W.  1114 
(stifling  prosecution). 


MOTIVE,   PREPARATION,    ETC.  79 

New  Mexico:      State  v.  Ancheta,  20  N.  M.  19,  145  P.  1086 

(attempt  to  bribe  witness). 

North  Dakota:      State  v.  Rosum,  8  N.  D.  548,  80  N.  W.  480 

(intimidation  of  witness). 

Oregon:      Schreyer  v.   Turner   Flouring   Mills   Co.,    29    Or. 

1,  43  P.  719  (not  producing  documents). 

Texas:  Martin  Brown  Co.  v.  Perrill,  77  Tex.  199,  13  S. 
W.  975  (failure  to  produce  evidence) ;  Weatherford,  M.  W. 
&  N.  R.  Co.  v.  Duncan,  88  Tex.  611,  32  S.  W.  878  (em- 
ployees of  defendant,  subpoenaed  by  plaintiff,  absent) ; 
Clark  v.  State,  (Tex.  Cr.  R.),  43  S.  W.  522  (defendant's 
brother  procuring  state's  witness  to  leave  country,  with 
his  knowledge);  Grimes  v.  State,  64  Tex.  Cr.  R.  64,  141 
S.  W.  261  (attempt  to  bribe  witness). 

Utah:  Mclntyre  v.  Ajax  Mining  Co.,  17  Utah  213,  53  P. 
1124   (failure  to  produce  evidence). 

Washington:  State  v.  Constantine,  4S  Wash.  218,  93  P. 
317  (fraud  in  presentation  of  case,  suppressing  or  attempt- 
ing to  suppress  evidence). 

California.  An  unsuccessful  attempt  to  prove  an  alibi  is 
not,  as  a  matter  of  law,  a  circumstance  of  "great  weight" 
against  the  prisoner. — People  v.  Malaspina,  57  Cal.  628. 
Oklahoma.  Evidence  of  attempt  to  bribe  witness  to  tes- 
tify in  defendant's  behalf  must  be  shown  to  have  been 
instigated  by  defendant  to  be  relevant. — Bruner  v.  United 
States,  21  Okl.  410,  96  P.  597. 

Texas.  Absence  of  two  eye  witnesses  to  accident  may  be 
accounted  for  by  showing  that  plaintiff  had  subpoenaed 
them,  and  that  they  were  in  employ  of  defendant. — Weath- 
erford, M.  W.  &  N.  Ry.  Co.  v.  Duncan,  88  Tex.  611,  32 
S.  W.   87S. 

The  fact  that  attempts  have  been  made  to  influence 
witnesses  is  admissible,  but  it  must  be  shown  that  de- 
fendant authorized  such  attempts. — Ezell  v.  State,  (Tex. 
Cr.  R.),  71  S.  W.  283. 

The  fact  that  witnesses  were  induced  to  leave  the  state 
cannot  be  shown,  in  the  absence  of  evidence  that  defend- 
ant was  connected  with  the  scheme. — Barnes  v.  State,  61 
Tex.  Cr.  R.  37,  133  S.  W.  887. 


80  STATEMENTS   ACCOMPANYING   ACTS 

Article  8.* 

statements   accompanying   acts,    complaints,    statements 
in  presence  of  a  person. 

Whenever  any  act  may  be  proved,  statements 
accompanying  and  explaining  that  act  made  by  or 
to  the  person  doing  it  may  be  proved  if  they  are 
necessary  to  understand  it.  (a) 

In  criminal  cases  the  conduct  of  the  person 
against  whom  the  offense  is  said  to  have  been 
committed,  and  in  particular  the  fact  that  he 
made  a  complaint  soon  after  the  offense  to  per- 
sons to  whom  he  would  naturally  complain,  are 
deemed  to  be  relevant;  but  the  terms  of  the 
complaint  itself  seem  to  be  deemed  to  be  ir- 
relevant, (b) 

When  a  person's  conduct  is  in  issue  or  is  or  is 
deemed  to  be  relevant  to  the  issue,  statements 
made  in  his  presence  and  hearing  by  which  his 
conduct  is  likely  to  have  been  affected,  are  deemed 
to  be  relevant,  (c) 

Illustrations. 

(a)  The  question  is,  whether  A  committed  an  act  of  bank- 
ruptcy by  departing-  the  realm  with  intent  to  defraud  his 
creditors. 

Letters  written  during:  his  absence  from  the  realm,  indi- 
cating; such  an  intention,  are  deemed   to  be  relevant  facts. — 1 

(a)  Illustrations  (a),  (b),  [(b  a),  (b  b),  (b  c),  <1>  d)  ami 
(b  e).  Other  statements  made  by  sucb  persons  are  relevant 
or  not,  according  to  the  rules  as  to  statements  hereinafter 
contained.     See  Ch.   IV,   infra;    3   Wigmore  Ev.,    §§    1745-1765.] 

(b)  Illustration    (c). 

(c)  R.  v.  Edmunds,  G  C.  &  P.  161;  Neil  v.  Jakle,  2  C.  &  K. 
709. 

Illustration   (d). 

•  See  Note  at  end  of  Article. 


STATEMENTS  ACCOMPANYING  ACTS 


(b)   The  question  is,  whether  A  was  sane. 

The  fact  that  he  acted  upon  a  letter  received  by  him  is 
part  of  the  facts  in  issue.  The  contents  of  the  letter  so  acted 
upon  are  deemed  to  be  relevant,  as  statements  accompanying 
and    explaining    such    conduct. — 2 

(b  a)  [The  question  is,  whether  a  certain  instrument  is  a 
deed    or   a    will. 

Statements  of  the  person  executing  the  instrument,  made 
to  the  scrivener,  to  the  effect  that  he  did  not  desire  to  make 
a  will,  but  preferred  to  convey  the  property  to  his  wife  in 
such  a  manner  that  he  could  retain  control  of  it  during  his 
lifetime,    is    relevant.] — 3 

(b  b)  [The  question  is,  whether  a  valid  levy  on  sheep  was 
made  by  a  deputy   sheriff. 

His  statement,  upon  delivering  plaintiff  a  written  notice 
of  the  alleged  levy,  that  the  sheriff  would  probably  never 
come  after  the   sheep,    is   relevant.] — 4 

(b  c)  [The  question  is,  did  defendant  have  probable  cause 
for    instituting   a    criminal    charge   against   plaintiff. 

Information  communicated  to  defendant  by  a  child  11  years 
old,  who  claimed  to  have  seen  the  plaintiff  commit  the  offense, 
there  appearing  no  reason  to  doubt  the  truth  of  her  state- 
ment,   is  relevant.] — 5 

(b  d)  [The  question  is,  whether  plaintiff's  cattle  were  in- 
jured  by   rough  handling  during   transit. 

Plaintiff's  complaint  to  the  conductor,  calling  attention  to 
the  fact  that  the  cattle  were  being  roughly  handled,  made 
during  the  time  the  cattle  were  in  possession  of  the  conductor 
and  in  the  course  of  transportation,  and  at  the  time  they  were 
being  roughly  handled,   is  relevant.] — 6 

(b  e)  [The  question  is,  whether  plaintiff  had  produced  a 
purchaser  ready  and  willing  to  take  the  property  of  defend- 
ant   upon   the   terms   proposed   by   him. 

Conversations  and  agreement  between  plaintiff  and  the 
prospective  purchaser  are  admissible  to  show  performance 
of  plaintiff's  contract.] — 7 

(I)  f)  [The  question  is.  whether  plaintiffs  had  acquired  a 
prescriptive  right   to  the  use  of  water  from  a  stream. 

i     Kawson    v.    Haigh.    2    Bing.    99;    Uateman    v.    Bailey.    •">    T 
512.      (See   supra,    Article    ::.) 

2  Wright  v.  I'...-  ,i.  Tatham,  7  a  &  E.  324,  325  (per  i><n- 
tnan,   ('    .1). 

3  [Stevens  v.   Halle,   (Tex.  Civ.  App.),   it;:'   s.   W,   1026.] 

4  [Auby   \.    Rathbun.   11    s.    I  >.   474,   7s    x    w    962.] 

5  [Dwain  v.  Descalso,  tie,  cal   115,  r,  P.  M3.] 

6  (.Missouri.  K.  &  T.  Ry.  Co.  v.  Ross  &  Phelan,  (Tex.  Civ. 
A-pp.),    12:!   S.    \V.    231.] 

7  [Leonard  v.  Roberts,  20  Colo.  B8,  3-0  ;\  880;  Good  v. 
Smith,    i  I  <  >r.   :.7*.   7»;   P.   36  I.  ] 


82  STATEMENTS   ACCOMPANYING   ACTS 

Declarations  of  plaintiffs  at  the  time  they  were  using  the 
water,  that  they  claimed  a  right  to  its  use,  are  relevant.] — 8 

(b  g)  [The  question  is,  was  plaintiff  the  owner  of  the  con- 
tents of  a  saloon  and  fixtures  attached  by  defendant  as  the 
property   of  a  former  owner. 

Declarations  of  the  latter,  made  after  plaintiff  had  gone 
into  possession,  that  he  had  sold  out  to  plaintiff,  are  irrele- 
vant.]— 9 

(c)  The  question  is,  whether  A  was  ravished.  The  fact 
that,  shortly  after  the  alleged  rape,  she  made  a  complaint 
relating  to  the  crime,  and  the  circumstances  under  which  it 
was  made,  are  deemed  to  be  relevant,  but  not  (it  seems)  the 
terms  of  the  complaint  itself. — 10 

The  fact  that,  without  making  a  complaint,  she  said  that 
she  had  been  ravished,  is  not  deemed  to  be  relevant  as  con- 
duct under  this  article,  though  it  might  be  deemed  to  be  rele- 
vant   (e.   g.)   as  a  dying  declaration,   under  Article  26. 

(d)  [The  question  is,  whether  insured  was  the  sole  and  un- 
conditional owner  of  the  property  insured. 

Statements  of  a  third  person,  made  in  the  presence  of  the 
insured  and  unobjected  to  by  him,  that  the  declarant  owned 
an  interest   therein,    is   relevant.] — 11 

STATEMENTS   ACCOMPANYING   ACTS    (VERBAL 

ACTS). 

In   General. 

Declarations  of  plaintiff  in  a  breach  of  promise  suit 
with  regard  to  the  conduct  of  defendant  with  respect  to 
his  agreement  to  marry  her  are  inadmissible. — Seibrandt 
v.  Sorg,  (Cal.),  65  P.  318;  Cooper  v.  Bower,  78  Kan.  156, 
96  P.  59. 

Arkansas.  The  acts  and  declarations  of  a  gratuitous 
bailee,  contemporaneous  with  the  loss  of  the  thing  bailed, 
are  competent  to  exonerate  him  from  the  imputation  of 
fraud. — Gracie  v.   Robinson,   14  Ark.   438. 

Declarations  of  decedent,  that  defendant  had  executed 
a  note  in  his  favor,  inadmissible. — Caffey  v.  Allison,  (Ark.), 
154  S.  W.  202. 

8  [Evans  Ditch  Co.  v.  Lakeside  Ditch  Co.,  13  Cal.  App.  119, 
108   P.    1027.] 

9  [Lumm   v.    Howells,    27    Utah    80,    74   P.    432.] 

10  R.  V.  Walker,  2  M.  &  R.  212,  see  Note  V,  accompany- 
ing this  article. 

11  [Simonds  v.  Firemen's  Fund  Ins.  Co.,  (Tex.  Civ.  App.), 
35   S.   W.    300.] 


STATEMENTS   ACCOMPANYING  ACTS  83 

California.  A  witness  may  testify  as  to  the  declarations 
of  a  party  made  to  him  while  such  party  was  engaged 
in  the  performance  of  an  act,  and  illustrating  the  object 
and  intent  of  its  performance,  although  such  party  has 
since  died.— Tait  v.  Hall,  71  Cal.  149,  12  P.  391. 

Proof  of  information  conveyed  to  a  person  relating  to 
the  subject-matter  of  a  letter  subsequently  written  by  him 
is  admissible  to  show  the  meaning  and  intent  of  words 
used  therein.— Dennie  v.  Clark,  3  Cal.  App.  760,  87  P.  59 
Colorado.  In  an  action  by  a  wife  for  enticing  away  her 
husband,  declarations  of  the  husband,  having  reference 
to  his  separation  or  contemplated  separation  from  his 
wife,  are  admissible  for  the  purpose  of  showing  what 
caused  such  separation. — Williams  v.  Williams,  20  Colo. 
51,  37  P.  614. 

Statements  sent  in  by  an  insurance  agent  to  his  com- 
pany made  during  the  transaction  of  business  for  which 
his  sureties  were  bound,  and  also  his  admission  of  indebt- 
edness made  to  the  company's  resident  secretary,  are  ad- 
missible against  his  sureties. — Thompson  v.  Commercial 
Union  Assur.  Co.,  20  Colo.  App.  331,  78  P.  1073. 
Kansas.  Declarations  as  to  title  and  ownership  of  land, 
by  one  in  possession  of  the  same,  who  is  not  a  party  to 
the  action,  which  are  not  against  his  interest,  do  not 
accompany  the  execution  of  a  conveyance  or  any  act  of 
possession,  nor  relate  to  the  extent  of  his  possession  and 
have  no  legitimate  connection  with,  or  tendency  to  qualify, 
any  act  which  is  the  subject  of  inquiry,  but  are  mainly 
narratives  of  past  occurrences,  do  not  constitute  a  part  of 
the  res  gestae  and  are  not  receivable  in  evidence.  (That 
the  land,  though  deeded  in  defendant's  name,  was  really 
declarant's). — Crawford  v.  Crawford,  60  Kan.  126,  55  P. 
842. 

Declarations  of  defendant,  made  several  months  before 
his  property  was  attached,  that  he  intended  to  return 
from  New  Mexico  and  had  not  abandoned  his  residence 
In  Kansas,  are  admissible  in  his  behalf. — Bigelow  v.  Bear, 
64  Kan.  887,  68  P.  73. 

Statements  of  a  person  actually  occupying  the  office  of 
president  of  a  bank  and  transacting  its  business,  that  the 
bank  did  not  hold  a  certain  note,  upon  making  an  investi- 


84  STATEMENTS   ACCOMPANYING   ACTS 

gation  therefor,  were  verbal  acts  and  admissible  against 
the  bank.— Olson  v.  Houston  Nat.  Bank,  78  Kan.  592,  96 
P.  853. 

Directions  by  a  depositor  as  to  credit  to  be  given,  rele- 
vant.— Fidelity  &  Deposit  Co.  of  Maryland  v.  State  Bank, 
91  Kan.  740,  139  P.  370. 

Montana.  "We  think  the  res  gestae  extended  over  the  en- 
tire time  between  July,  1885,  when  the  contract  (for  adop- 
tion as  daughter)  was  alleged  to  have  been  made,  to  the 
death  of  the  deceased.  The  conduct  of  the  parties  to- 
wards each  other  during  that  entire  time  is  part  of  the 
transaction,  and  whatever  either  party  did  or  said  during 
the  time  which  sheds  light  upon  the  matter  and  aids  in  dis- 
closing the  relations  the  parties  sustained  and  understood 
that  they  sustained  towards  each  other  must  be  construed 
as  part  of  the  res  gestae." — Burns  v.  Smith,  21  Mont.  251, 
53  P.  742. 

Letters  making  demand  for  delivery  of  goods  are  admis- 
sible to  show  demand. — Sandeen  v.  Russell  Lumber  Co., 
45   Mont.   273,   122   P.   913. 

Nebraska.  Declarations  of  parties  made  at  a  meeting  of 
a  school  district  where  a  resolution  for  compromise  of  a 
claim  against  the  district  was  adopted,  tending  to  show 
that  they  were  intimidated  and  for  that  reason  left  the 
meeting  and  refrained  from  voting  on  the  resolution,  are 
properly  receivable  as  part  of  the  res  gestae.— Gering  v. 
School  Dist.  No.  28,  76  Neb.  219,  107  N.  W.  250. 
Nevada.  Declarations  made  by  a  train  agent  and  the  con- 
ductor at  the  time  plaintiff  was  ejected  are  admissible  as 
part  of  the  res  gestae. — Forrester  v.  Southern  Pac.  Co., 
36  Nev.  247,  134  P.  753. 

Oregon.  A  letter  from  one  of  the  parties  to  another  con- 
cerning the  goods  in  question,  being  a  part  of  and  ex- 
planatory of  the  transaction,  is  admissible. — Frame  v. 
Oregon  Liquor  Co.,  48  Or.  272,  85  P.  1009. 

Declarations  of  one  having  owned  and  in  possession  of 
property  are  admissible  to  show  that  he  had  never  con- 
sciously parted  with  title  to  it. — Butts  v.  Purdy,  63  Or. 
150,  125  P.  313. 

The  declarations  of  the  president  of  a  corporation  to 
the  payee  of  a  note,  that  he  had  authority  to  execute  it, 


STATEMENTS  ACCOMPANYING  ACTS  85 

are  admissible  as  res  gestae,  not  to  prove  authority,  but  to 
show  that  he  actually  affixed  his  signature  thereto. — 
Markham  v.  Loveland,  69  Or.  451,  138  P.  483. 
South  Dakota.  Letter  written  by  plaintiff,  making  demand 
for  the  $400  involved  in  the  case,  admissible. — Ede  v. 
Ward,  32  S.  D.  351,  143  N.  W.  269. 

Texas.  The  question  being  as  to  a  parol  sale  of  sheep, 
letters  of  defendant  to  a  third  person,  tending  to 
show  a  valid  sale  of  the  sheep  to  defendant,  are  admis- 
sible.— Downey  v.  Taylor,   (Tex.  Civ.  App.),  48  S.  W.  541. 

Declarations  of  a  landowner  as  to  the  purpose  in  laying 
out  a  square  are  admissible  on  the  question  as  to  whether 
it  was  dedicated  as  a  public  square. — Scott  v.  Rockwall 
County,    (Tex.  Civ.  App.),  49  S.  W.  932. 

The  acts  and  declarations  of  one  presenting  a  note 
for  payment  constitute  a  part  of  the  res  gestae. — Bolt  v. 
State  Savings  Bank,   (Tex.  Civ.  App.),  145  S.  W.  707. 

Declarations  of  a  wife  on  the  day  her  husband  died, 
tending  to  show  her  knowledge  of  a  deed  by  him  to  her, 
but  retained  in  his  possession,  admitted  to  show  her  knowl- 
edge of  the  existence  of  the  deed  prior  to  her  husband's 
death.— Stevens  v.  Haile,  (Tex.  Civ.  App.),  162  S.  W. 
1025. 

Declarations  of  a  husband  upon  leaving  premises  used 
as  a  homestead,  that  they  would  return  as  soon  as  the 
condition  of  her  health  would  permit,  are  admissible  upon 
the  question  of  abandonment  of  the  homestead. — Parker 
v.  Schrimsher,   (Tex.  Civ.  App.),  172  S.  W.  165. 

Declarations  of  a  person  running  an  automobile  that 
"as  long  as  he  had  purchased  the  car  he  would  like  to 
run  it,"  are  admissible  to  show  ownership.— Olds  Motor 
Works  v.  Churchill,  (Tex.  Civ.  App.),  175  S.  W.  785. 
Wyoming.  Declarations  of  a  defendant  during  flight  ad- 
missible as  verbal  acts  constituting  a  part  of  the  trans- 
action. (That  he  was  going  to  leave  the  country;  that 
they  were  making  it  pretty  hot  for  him  in  Brown's  Park.) 
—Johnson  v.  State,  8  Wyo.  494,  58  P.  761. 

Explanatory  of   Nature   of   Instrument  or  Transaction. 
California.     Oral   declarations   made   by  a   person   at   and 
about  the  time  he  signed  orders  upon  which  his  wife  drew 
deposits  from  a  bank  are  admissible  on  the  question  as 


86      STATEMENTS  ACCOMPANYING  ACTS 

to  a  gift  of  such  deposits. — Sprague  v.  Walton,  145  Cal. 
228,  78  P.  645. 

Intent  to  make  gift  inter  vivos  may  be  shown  by  decla- 
rations before  or  after. — Ruiz  v.  Dow,  113  Cal.  490,  45  P. 
867. 

Colorado.  Declarations  of  the  grantor  in  a  deed  made  ten 
days  after  its  execution  are  not  res  gestae. — Chappell  v. 
John,  45  Colo.  45,  99  P.  44. 

Kansas.  Where  a  parent  executes  a  series  of  deeds  to 
several  of  his  children,  seemingly  in  pursuance  of  a  gen- 
eral plan,  evidence  of  what  he  said  at  the  time  of  the 
delivery  of  one  of  them,  tending  to  show  a  purpose  to  dis- 
criminate against  a  part  of  his  children  in  the  disposition 
of  his  property,  is  competent  evidence  that  all  the  deeds 
of  the  series,  including  even  those  of  an  earlier  date,  were 
intended  as  preferential  gifts.— Plowman  v.  Nicholson,  81 
Kan.  210,  106  P.  279. 

Declarations  of  a  grantor  after  a  deed  had  been  signed 
and  acknowledged,  but  before  it  was  delivered  by  record- 
ing, throwing  light  upon  the  question  as  to  whether  the 
deed  was  a  preferential  gift  or  an  advancement  to  a  son, 
are  relevant.— Martin  v.  Shumway,  89  Kan.  892,  132  P.  993. 
North  Dakota.  Declarations  of  a  grantor  to  a  notary  made 
at  the  drawing  up  of  a  deed  to  his  son,  as  to  why  the 
deed  was  given,  are  inadmissible. — Johnston  v.  Spoonheim, 
9  N.  D.  191,  123  N.  W.  830. 

Oregon.  Grantor's  declarations  to  a  notary  at  the  time 
a  conveyance  was  executed,  in  respect  to  the  subject- 
matter,  are  admissible.— Robson  v.  Hamilton,  41  Or.  239, 
69  P.  651. 

Texas.  Acts  or  words  of  a  grantor,  even  though  retain- 
ing possession  of  the  deed,  showing  that  he  intended  title 
should  pass  to  the  grantee,  are  admissible  upon  the  ques- 
tion of  delivery. — Chew  v.  Jackson,  (Tex.  Civ.  App.),  102 
S.  W.  427. 

Declarations  made  after  the  execution  of  a  contract 
of  sale  that  certain  property  bought  was  not  included  in 
the  instrument  are  inadmissible. — Syler  v.  Culp,  (Tex. 
Civ.  App.),  138  S.  W.   175. 

Making  or  Performance  of  Contracts. 
Kansas.     Statements  by  the  president  of  a  company  whose 
name  was  signed  to  negotiable  paper,  made  after  its  ma- 


STATEMENTS   ACCOMPANYING  ACTS  87 

turity,  to  a  surety  thereon,  requesting  him  to  protect  it, 
are  admissible  upon  the  question  as  to  who  was  the  prin- 
cipal  debtor. — Water  Power   Co.   v.   Brown,   23   Kan.   676. 

Directions  by  a  depositor  as  to  how  a  certain  deposit 
shall  be  credited,  when  a  part  of  the  transaction  ac- 
companying it,  may  be  shown  by  the  banker. — Washbon 
v.  State  Bank  of  Holton,  86  Kan.  468,  121  P.  515. 
North  Dakota.  Where  the  only  controverted  point  related 
to  the  matter  of  payment  for  wheat,  delivered  by  plaintiff 
to  defendant's  elevator,  it  was  proper  to  prove  by  plain- 
tiff that  defendant's  agent  assigned  as  a  reason  for  re- 
fusing to  pay  him,  that  the  wheat  had  never  been  de- 
livered.— Benjamin  v.  Northwestern  Elevator  Co.,  6  N. 
D.   254,   69  N.  W.  296. 

Letters  written  long  after  a  contract  was  entered  into, 
giving  the  writer's  version  of  the  transaction,  inadmis- 
sible.—Mulroy  v.  Jacobson,  24  N.  D.  354,  139  N.  W.  697. 
Oklahoma.  Letters  forming  part  of  a  transaction  to  se- 
cure life  insurance  are  admissible. — Keel  v.  New  York  Life 
Ins.  Co.,  20  Okl.  195,  94  P.  177. 

Oregon.  Conversation  between  plaintiff's  attorney  with 
president  of  defendant  corporation  as  to  his  authority  to 
sign  a  certain  note  for  the  corporation,  made  during  nego- 
tiations for  its  signature,  are  admissible  as  part  of  the 
proof  that  the  note  was  thus  signed. — Markham  v.  Love- 
land.   69  Or.  451,  138  P.  483.  * 

South  Dakota.  Declarations  of  insured  made  while  a 
policy  was  in  his  hands  as  to  reasons  why  it  was  not  de- 
livered to  insured,  admissible. — Wheaton  v.  Liverpool  & 
London  &  Globe  Ins.  Co.,  20  S.  D.  62,  104  N.  W.  850. 
Texas.  Testimony  as  to  original  entries  made  in  a  memo- 
randum book  by  an  agent  of  a  payee  of  a  note,  showing 
receipt  by  him  of  the  balance  due  on  the  note,  are  ad- 
missible upon  the  question  as  to  the  circumstances  of  pay- 
ment.—Henry  v.  Bounds,   (Tex.  Civ.   Apj). i.  46  S.  w.   126. 

Declaration  of  grantee  in  a  deed  upon  being  presented 
with  the  instrument  for  acceptance  that  he  would  not 
accept  the  deed  is  admissible  upon  the  question  of  accept- 
ance.—Smith  v.  T.  M.  Richardson  Lumber  Co.,  92  Tex. 
448.  49  S.  W.   574. 

What  was  aald  by  the  parties  who  delivered  and  who 
received   trees    when    they   were    shipped,   concerning   the 


88      STATEMENTS  ACCOMPANYING  ACTS 

same  and  their  transportation,  is  admissible. — Pacific  Ex- 
press Co.  v.  Needham,  (Tex.  Civ.  App.),  94  S.  W.  1070. 

Acts  and  declarations  of  one  presenting  a  note  for  pay- 
ment, as  to  its  owner,  are  admissible. — Bolt  v.  State  Sav- 
ings Bank,    (Tex.  Civ.  App.),  145  S.  W.  707. 

Plaintiff  sent  to  another  bank  before  maturity  an  un- 
indorsed note  for  collection.  Its  declaration  in  the  trans- 
mitting letter,  that  "We  purchased  this  note  on  your 
recommendation,  dated  April  9,  1909,"  was  admissible  in 
proof  of  plaintiff's  claim  of  ownership  before  maturity. — 
National  State  Bank  v.  Ricketts,  (Tex.  Civ.  App.),  152  S. 
W.  646. 

Persons  in   Possession  of  Land. 

Declarations  of  a  person  in  possession  of  land  are  ad- 
missible to  show  the  character  and  extent  of  the  holding: 
Arkansas:  Seawell  v.  Young,  77  Ark.  309,  91  S.  W.  544 
(claim  of  sole  ownership;  admissible  on  behalf  of  heirs 
of  declarant) ;  Davis  v.  Epstein,  77  Ark.  221,  92  S.  W.  19 
(that  he  had  dedicated  a  water  front  to  the  public). 
California:  Stockton  Sav.  Bank  v.  Staples,  98  Cal.  189, 
32  P.  936  (claim  of  sole  ownership) ;  Bush  &  Mallett  Co. 
v.  Helbing,  134  Cal.  616,  66  P.  967  (grantor  remaining  in 
possession  after  conveyance  to  wife,  deed  unrecorded,  ad- 
missible to  show  fraud). 

Kansas:  Hubbard  v.  Cheney,  76  Kan.  222,  91  P.  793  (pur- 
chase and  ownershp) ;  Butts  v.  Butts,  84  Kan.  475,  114  P. 
1048  (admissible,  not  as  assertion  of  title,  but  to  explain 
possession  and  character  of  ownership). 
Oklahoma:  Meyer  v.  United  States,  5  Okl.  173,  48  P.  186 
(character  and  purpose  of  holding). 

South  Dakota:  Murphy  v.  Dafoe,  18  S.  D.  42,  99  N.  W.  86 
(that  he  was  acting  as  agent). 

Texas:  Gunn  v.  Wynne,  (Tex.  Civ.  App.),  43  S.  W.  290 
(intended  to  stay  until  he  died). 

Arkansas:  The  declarations  of  one  in  possession  of  land 
that  she  had  never  delivered  a  deed  to  a  certain  party 
are  inadmissible. — King  v.  Slater,  96  Ark.  589,  133  S. 
W.  173. 

Acts  and  declarations  of  an  owner  of  land  tending  to 
show  that  he  recognized  the  claim  of  an  adjoining  land 
owner  to  certain  land  the  former  was  in  possession  of  are 


STATEMENTS   ACCOMPANYING  ACTS  89 

admissible  on  the  question  as  to  whether  such  holding  was 
adverse.— Butler  v.  Hines,  101  Ark.  409,  142  S.  W.  509. 
California.  The  declarations  of  a  person  while  engaged 
in  the  performance  or  an  act,  and  illustrating  the  object 
and  intent  of  its  performance,  are  admissible.  (Declara- 
tions of  an  owner  of  land  while  he  was  having  it  surveyed, 
that  he  was  not  going  to  have  a  road  on  the  west  line  of 
the  land  he  was  surveying.) — Tait  v.  Hall,  71  Cal.  149, 
12  P.  391. 

Declarations  of  a  grantor  of  land  made  to  his  grantee 
before  parting  with  title,  that  he  had  a  prescriptive 
right  to  a  ditch  to  convey  water  over  the  lands  of  another, 
are  admissible. — Burris  v.  Rodrigues,  22  Cal.  App.  645,  135 
P.  1105. 

Colorado.  That  declarant  claimed  to  be  the  owner  of  a 
priority  to  the  use  of  water  and  was  exercising  rights 
thereunder,  relevant  to  negative  abandonment. — Central 
Trust  Co.  v.  Culver,  35  Colo.  93,  83  P.  1064. 
Idaho.  Declarations  of  a  grantor  as  to  the  stakes  of  an 
adjoining  claim  admissible,  if  made  before  he  parted  with 
the  property. — Bismark  Mountain  Gold  Min.  Co.  v.  North 
Sunbeam  Gold  Co.,  14  Ida.  516,  95  P.  14. 
Kansas.  Declarations  of  a  deceased  tenant  in  possession, 
in  assertion  of  his  title  to  the  tract  are  admissible  to 
prove  the  fact  of  an  adverse  claim  of  title  against  his  co- 
tenant.— Rand  v.  Huff,  59  Kan.  777,  53  P.  483. 

Declarations  of  persons  in  possession  of  property  made 
after  their  execution  of  a  deed  to  the  same,  that  they  were 
not  leasing  but  owned  the  property,  inadmissible. — Brough- 
an  v.  Broughan,  62  Kan.  724,  64  P.  608. 

Declarations  by  a  husband  while  he  and  his  wife  were 
in  possession  of  land  under  a  deed  to  both  jointly,  ex- 
planatory of  the  possession  and  rights  claimed  in  the 
land,  are  admissible  upon  the  question  as  to  whether  the 
inclusion  of  the  wife's  name  therein  was  merely  to  secure 
her  for  a  loan  to  make  up  the  purchase  price,  making 
the  deed  merely  a  mortgage  as  to  her. — Hubbard  v. 
Cheney,  71  Kan.   222,   91   P.  793. 

In  an  action  where  there  is  an  issue  of  adverse  posses- 
sion of  land,  the  declarations  of  the  occupant  importing 
title  in  himself,  which  give  color  to  his  possession,  are 
admissible   as    verbal    parts   of   his    act    of   occupation. — 


90  STATEMENTS  ACCOMPANYING  ACTS 

Liebheit  v.  Enright,  77  Kan.  321,  94  P.  203;  Rand  v.  Huff, 
59  Kan.  777,  53  P.  483. 

Texas.  Declarations  of  persons  in  possession  of  land  that 
they  held  as  tenants  cannot  be  used  to  show  possession 
of  the  landlord  for  the  purpose  of  showing  his  adverse 
possession.— Dunn  v.  Taylor,  102  Tex.  80,  113  S.  W.  265. 

Not  competent  when  they  relate  to  a  previous  posses- 
sion.— Campbell  v.  San  Antonio  Machine  &  Supply  Co., 
(Tex.  Civ.  App.),  133  S.  W.  750. 

Declarations  made  by  a  party  while  in  the  actual  pos- 
session of  property,  asserting  title  in  himself  are  admis- 
sible in  evidence  as  part  of  the  res  gestae,  explanatory  of 
the  possession,  but  this  declaration  cannot  be  extended 
to  include  declarations  as  to  the  history  and  source  of 
such  title.— Lester  v.  Huston,  (Tex.  Civ.  App.),  167  S.  W. 
321. 

Persons  in  Possession  of  Personal  Property. 

Declarations  of  one  in  possession  of  personal  property, 
explanatory  of  possession,  are  admissible: 
Kansas:  Stone  v.  Bird,  16  Kan.  488  (claim  as  owner); 
Wiggins  v.  Foster,  8  Kan.  App.  579,  55  P.  350  (disparage- 
ment of  title,  or  explanatory  of  possession) ;  Kimball  v. 
Edwards,  91  Kan.  298,  137  P.  948  (ownership  of  certifi- 
cate of  stock). 

Montana:  Chan  v.  Slater,  33  Mont.  155,  82  P.  657  (claim 
of  ownership,  after  title  transferred  to  wife). 
North  Dakota:  Wipperman  Merc.  Co.  v.  Robbins,  23  N. 
D.  208,  135  N.  W.  785  (ownership  of  car  of  poultry). 
Texas:  First  Nat.  Bank  v.  Howard,  (Tex.  Civ.  App.), 
174  S.  W.  719  (by  bailee,  as  to  who  was  bailor);  Wofford 
v.  Lane,  (Tex.  Civ.  App.),  167  S.  W.  180  (that  he  had 
given  mules  to  wife). 

Declarations  of  a  herder  in  charge  of  sheep  trespassing 
upon  lands  of  another,  that  they  belonged  to  a  certain 
person,  are  inadmissible. — Surbaugh  v.  Butterfield,  44 
Utah  446,  140  P.  757;  Contra,  Henderson  v.  Coleman,  19 
Wyo.  183,  115  P.  439. 

Kansas.  Declarations  of  a  party  accompanying  some 
principal  fact  which  they  serve  to  qualify  or  explain  are 
a  part  of  the  res  gestae.  (Statements  of  ownership  and 
claim  to  a  horse,  while  in  possession.) — Stone  v.  Bird,  16 
Kan.  488. 


STATEMENTS   ACCOMPANYING   ACTS  91 

Nevada.  Declaration  of  person  in  possession  of  personal 
property  that  it  belonged  to  him,  and  its  being  marked  in 
his  name,  furnished  some  evidence  in  proof  of  his  title. 
— Hanson  v.  Chiatovich,  13  Nev.  395. 

North  Dakota.  Declarations  of  defendant  in  attachment 
proceedings  as  to  the  ownership  of  personal  property 
levied  upon,  while  in  possession  thereof,  are  admissible  to 
prove  his  interest  therein. — Wipperman  Mercantile  Co.  v. 
Robbins,  23  N.  D.  208,  135-  N.  W.  785. 
Oklahoma.  Acts  and  declarations  of  the  possessor  of  per- 
sonal property  concerning  the  same  are  admissible,  to 
determine  the  nature  of  such  possession,  though  not  made 
in  the  presence  of  the  one  claiming  ownership  in  the 
property. — Ragan  v.  Citizens'  State  Bank,  (Okl.),  131  P. 
1093. 

Texas.  Declarations  of  one  in  possession  of  a  store  and 
goods,  explanatory  of  the  same,  stating  for  whom  he  was 
holding,  are  admissible  as  res  gestae. — Hunter  v.  Pen- 
land,    (Tex.  Civ.  App.),  32  S.  W.  421. 

Utah.  Statements  by  a  debtor  that  he  had  sold  his  grain 
to  plaintiff,  not  made  at  the  time  of  the  sale,  or  during 
negotiations  for  the  sale,  are  inadmissible  to  show  title 
in  plaintiff  as  against  one  levying  on  the  grain  before  such 
vendor  had  parted  with  possession. — White  v.  Pease.  15 
Utah  70,  49  P.  416. 

Showing  Knowledge  or  Mental  Condition. 
California.  Declarations  of  a  section  foreman,  in  direct- 
ing a  trestle  foreman  to  repair  a  certain  trestle,  that 
"that  trestle  is  going  down  and  will  kill  the  whole  outfit 
of  you,"  are  admissible  to  show  knowledge  of  the  com- 
pany through  its  agent  of  defects  in  the  trestle. — Bunfly 
v.  Sierra  Lumber  Co..  149  Cal.  622,  87  P.  622. 

Declarations  of  a  decedent  with  reference  to  making 
a  disposition  of  his  property,  made  some  time  before  the 
execution  of  a  deed,  are  admissible  to  show  his  mental 
capacity,  but  not  to  show  undue  influence  or  fraud. — 
Lamb  v.  Wilke,  19  Cal.  App.  286,  125  P.  757. 
Colorado.  Declarations  of  voters  as  to  domicile  made  at 
the  time  of  voting,  tending  to  impeach  their  qualifica- 
tions as  electors,  are  admissible. — Sharp  v.  Mclntire,  23 
Colo.  99,  46  P.  115. 


92  STATEMENTS   ACCOMPANYING   ACTS 

Declarations  of  testatrix,  made  at  the  time  of  drawing 
a  line  through  the  signature  of  her  will,  are  admissible  to 
show  the  intent  of  the  act. — Glass  v.  Scott,  14  Colo.  App. 
377,  60  P.  186. 

Texas.  Declarations  of  the  grantor  at  the  time  of  the 
execution  of  a  deed  are  admissible  to  prove  fraud  and 
undue  influence  as  a  part  of  the  res  gestae. — Rankin  v. 
Rankin,  (Tex.  Civ.  App.),  151  S.  W.  527. 
Wyoming.  In  an  action  for  malicious  prosecution  of 
plaintiff  for  cutting  and  removing  the  hay  grown  upon 
certain  land,  testimony  as  to  what  plaintiff  had  stated  in 
the  presence  of  defendant  and  the  register  and  receiver 
of  the  land  office  as  to  his  claim  to  the  land,  and  the  re- 
plies of  the  register  and  receiver  respectively,  are  admis- 
sible to  show  defendant's  knowledge  that  plaintiff  had 
claimed  the  land  as  part  of  his  homestead  and  that  the 
register  and  receiver  recognized  such  claim. — Boyer  v. 
Bugher,  19  Wyo.  463,  120  P.  171. 
RAPE. 
Fact  of  Complaint  Admissible. 

In  prosecutions  for  rape,  the  fact  that  the  victim  made 
immediate  complaint  is  relevant. — Pleasant  v.  State,  15 
Ark.  624;  People  v.  Figueroa,  134  Cal.  159,  66  P.  202;  State 
v.  Daugherty,  63  Kan.  473,  65  P.  695;  State  v.  Sargent,  32 
Or.  110,  49  P.  889;  Pefferling  v.  State,  40  Tex.  486;  Ulmer 
v.   State,   71  Tex.  Cr.   R.  579.   160   S.  W.   1188. 

The  state  may  show  as  corroboration  of  the  prosecu- 
trix's testimony,  that  she  made  complaint  soon  after  com- 
mission of  the  outrage. — Trimble  v.  Territory,  8  Ariz.  273, 
71  P.  932;  People  v.  Barney,  114  Cal.  554,  47  P.  41;  Welsh 
v.  State,  60  Neb.  101,  82  N.  W.  368. 

The  fact  that  prosecutrix  made  complaint  is  not  neces- 
sary to  be  shown  in  order  to  corroborate  her  testimony, 
when  she  is  under  the  age  of  consent,  and  willingness  is  im- 
material.— Levy  v.  Territory,  13  Ariz.  425,  115  P.  415;  Peo- 
ple v.  Lee,  119  Cal.  84,  51  P.  22;  People  v.  Wilmot,  139 
Cal.  103,  72  P.  838;  People  v.  Jacobs,  16  Cal.  App.  478, 
117  P.  615;  State  v.  Birchard,  35  Or.  484,  59  P.  468. 

The  rule  that  unless  the  prosecuting  witness  testifies 
the  fact  of  her  complaint  is  hearsay  and  inadmissible  does 
not  apply  where  the  child  is  of  too  tender  an  age  to  tes- 


STATEMENTS   ACCOMPANYING   ACTS  93 

tify.— People  v.  Figueroa,  134  Cal.  159,  66  P.  202;  People 
v.  Bianchino,    (Cal.  App.),  91  P.   112. 

Either  the  prosecutrix  or  the  persons  to  whom  she  made 
complaint  may  testify  as  to  that  fact. — People  v.  Wilmot, 
139  Cal.  103,  72  P.  838;  People  v.  Scalamiero,  143  Cal.  343, 
76  P.  1098;  State  v.  Fowler,  13  Ida.  317,  89  P.  757;  Oleson 
v.  State,  11  Neb.  276,  9  N.  W.  38;  Welsh  v.  State,  60  Neb. 
101,  82  N.  W.  368;  Harmon  v.  Territory,  9  Okl.  313,  60  P. 
115;  State  v.  Ogden,  39  Or.  195,  65  P.  449. 

The  rule  permitting  the  fact  of  timely  complaint  to  be 
introduced  in  evidence  applies  to  the  crime  against  nature. 
—People  v.  Swist,  136  Cal.  520,  69  P.  223. 

Also  to  assault  with  intent  to  rape. — State  v.  Imlay,  22 
Utah  156,  61  P.  557. 

California.  The  mother  may  testify  that  the  child  made 
complaint  and  that  she  made  an  examination,  and  may 
state  the  result  of  the  examination. — People  v.  Baldwin, 
117  Cal.  244,  49  P.  186. 

A  complaint  communicated  in  the  form  of  mere  idle 
gossip  is  inadmissible. — People  v.  Wilmot,  139  Cal.  103, 
72  P.  83&. 

Corroboration  by  showing  fact  of  complaint  is  not  neces- 
sary to  sustain  a  verdict. — People  v.  Horn,  25  Cal.  App. 
583,  144  P.  641. 

Idaho.  In  a  prosecution  for  rape  the  state  may  prove  by 
prosecutrix  and  other  witnesses  that  she  made  complaint 
soon  after  the  commission  of  the  alleged  act,  and  show 
when,  where  and  to  whom,  and  under  what  circumstances 
she  made  complaint,  and  her  appearance,  demeanor  and 
physical  condition  at  the  time  she  made  complaint;  but 
the  details  of  the  conversations  had,  and  the  name  of  the 
person  accused  by  her  may  not  be  given  by  the  witness. — 
State  v.  Fowler,  13  Ida.  317,  89  P.  757. 

Kansas.  Testimony  of  complaints  of  the  injured  person 
concerning  the  alleged  offense  upon  her  is  admitted  upon 
the  theory  that,  if  she  made  no  complaint  of  such  an  out- 
rage, her  silence  might  be  construed  as  evidence  that  it 
had  not  occurred. — State  v.  Hoskinson,  78  Kan.  183,  96 
P.   138. 

Nebraska.  Where  prosecutrix  does  not  testify,  through 
imbecility,  etc.,  the  fact  of  complaint  is  inadmissible. — 
State  v.  Meyers,  46  Neb.  152,  64  N.  W.  697. 


94      STATEMENTS  ACCOMPANYING  ACTS 

The  jury  may  be  told  that,  if  they  found  that  prosecu- 
trix made  timely  complaint,  they  might  consider  that  fact 
in  connection  with  other  facts  and  circumstances  estab- 
lished by  the  evidence  in  ascertaining  whether  the  woman 
had  been  corroborated. — Henderson  v.  State,  85  Neb.  444, 
123  N.  W.  459. 

Utah.  In  a  prosecution  for  rape  the  prosecutrix  may,  upon 
her  examination  in  chief,  testify  to  the  fact  that  she  made 
complaint,  and  to  whom  and  when  and  where  such  com- 
plaint was  made,  but  not  the  particulars  thereof. — State 
v.  Neel,  21  Utah  151,  60  P.  510. 

Washington.  Prosecutrix,  when  testifying  to  the  fact  that 
she  made  complaint,  may  state  the  name  of  the  person  to 
whom  such  complaint  was  made. — State  v.  Gay,  82  Wash. 
423,  144  P.  711. 

Details  of  Complaint. 

The  fact  that  the  prosecuting  witness  made  complaint 
at  first  opportunity  is  admissible,  but  not  the  details  of 
what  she  said.— Lee  v.  State,  66  Ark.  286,  50  S.  W.  517; 
Williams  v.  State,  66  Ark.  264,  50  S.  W.  517;  People  v. 
Stewart,  97  Cal.  238,  32  P.  8;  People  v.  Lambert,  120  Cal. 
170,  52  P.  307;  People  v.  Wilmot,  139  Cal.  103,  72  P.  838; 
People  v.  Scalamiero,  143  Cal.  343,  76  P.  1098;  State  v. 
Harness,  10  Ida.  18,  76  P.  7S8;  Oleson  v.  State,  11  Neb. 
276.  9  N.  W.  38;  Mathews  v.  State.  19  Neb.  330.  27  N.  W. 
234;  Henderson  v.  State,  85  Neb.  444,  123  N.  W.  459;  Har- 
mon v.  Territory,  5  Okl.  268,  49  P.  55;  State  v.  Hunter,  18 
Wash.   670,   52  P.   647. 

Details  of  the  complaint  may  be  admitted,  if  the'y  were 
so  recent  as  to  be  in  the  nature  of  spontaneous  exclama- 
tions.—Rogers  v.  State,  65  Tex.  Cr.  R.  105,  143  S.  W.  631; 
Valdez  v.  State,  71  Tex.  Cr.  R.  487,  160  S.  W.  341;  Douglass 
v.  State,  73  Tex.  Cr.  R.  385,  165  S.  W.  933;  State  v.  Neel, 
21  Utah  151,  60  P.  510;  State  v.  Imlay,  22  Utah  156,  61 
P.  551. 

The  details  of  her  complaint  are  admissible  when 
brought  out  on  cross-examination  or  impeachment  of  tes- 
timony as  to  any  complaint  having  been  made. — Sexton 
v.  State,  91  Ark.  589,  121  S.  W.  1075;  Territory  v.  Mal- 
donado,  9  N.  M.  629,  58  P.  350;  State  v.  Werner,  16  N.  D. 
83,  112  N.  W.  60;  State  v.  Apley,  25  N.  D.  298,  141  N.  Wl 
740;  State  v.  Neel,  21  Utah  151,  60  P.  510. 


STATEMENTS  ACCOMPANYING  ACTS      95 

The  state  may  not  show  whom  the  prosecutrix  named 
in  making  her  complaint. — People  v.  Wilmot,  139  Cal.  103, 
72  P.  838;  State  v.  Daugherty,  63  Kan.  473,  65  P.  695; 
State  v.  Whitman,  72  Or.  415,  143  P.  1121;  Contra,  Hamer 
v.  State,  104  Ark.  606,  150  S.  W.  142. 

Arkansas.  Testimony  of  an  officer  that  the  woman  de- 
scribed the  person  committing  the  offense,  in  consequence 
of  which  he  arrested  defendant,  is  inadmissible. — Davis  v. 
State,  63  Ark.  470,  39  S.  W.  356. 

California.  Details  of  the  woman's  complaint  are  admis- 
sible, to  rehabilitate  the  witness. — People  v.  Graham,  21 
Cal.  261. 

New  Mexico.  When  details  of  the  woman's  complaints  to 
others  have  been  elicited  on  cross-examination,  they  may 
be  more  fully  developed  on  redirect  examination. — State 
v.  Ellison,  19  N.  M.  428,  144  P.  10. 

Utah.  Prosecutrix  may  testify  to  whom  she  made  her 
complaint,  and  where. — State  v.  Neel,  21  Utah  151,  60  P. 
510. 

Condition   and   Appearance. 

Her  appearance,  condition  and  demeanor  immediately 
after  the  assault,  admissible. — State  v.  Neil,  13  Ida.  539, 
90  P.  860;   State  v.  Sargent,  32  Or.  110,  49  P.  889. 

Physical    condition    next    morning,    admissible. — Jacobs 
v.  State,  66  Tex.  Cr.  It.  146,  146  S.  W.  558. 
Texas.     Evidence  of  mental  condition  of  prosecutrix  soon 
after,   admissible.— Kearse   v.    State,    (Tex.    Cr.    R.),    88    S. 
W.    363.  • 

Delay  In   Making  Complaint. 

Complaints  must  be  shown  to  have  been  made  at  the 
first  opportune  time,  in  order  to  render  them  admissible, 
unless  excused  by  circumstances: 

Arizona:  Trimble  v.  Territory,  8  Ariz.  273,  71  P.  932 
(excused  by  intimidation  and  lack  of  opportunity). 
Montana:  State  v.  Peres.  27  Mont.  35S,  71  P.  162  (rule 
does  not  apply  where  female  was  under  age  of  consent). 
Texas:  Adams  v.  State.  52  Tex.  Cr.  R.  13,  105  S.  W.  197 
(little  girl,  complaint  day  after,  admissible);  Ortiz  v. 
State,  68  Tex.  Cr.  R.  608,  151  S.  W.  1059  (day  after,  made 
in  sufficient  time,  when  prevented  by  force);  Roberson  v. 
State,  (Tex.  Cr.  R.),  49  S.  W.  398  (on  first  opportunity,  to 
mother);    Duckett  v.  State,  68  Tex.  Cr.  R.  331,  150  S.  W. 


96  STATEMENTS   ACCOMPANYING   ACTS 

1177  (complaint  to  teacher  at  recess  and  to  parents  at 
night,  admissible). 

Too  long  a  delay,  unexcused,  renders  the  fact  of  com- 
plaint inadmissible: 

California:  People  v.  Lambert,  120  Cal.  170,  52  P.  307; 
People  v.  Corey,  8  Cal.  App.  720,  97  P.  907  (three  weeks 
after) ;  People  v.  Gonzalez,  6  Cal.  App.  255,  91  P.  1013 
(six  weeks  after). 

Texas:  Thompson  v.  State,  33  Tex.  Cr.  R.  472,  26  S.  W. 
987  (delay  of  a  year);  Cowles  v.  State,  51  Tex.  Cr.  R. 
498,  102  S.  W.  1128. 

Washington:  State  v.  Griffin,  43  Wash.  591,  86  P.  951 
(months  after). 

Delay  in  making  complaint  may  be  explained  by  evi- 
dence of  threats  or  other  prevention. — Salazar  v.  State, 
55  Tex.  Cr.  R.  307,  116  S.  W.  819;  Pettus  v.  State,  58  Tex. 
Cr.   R.   546,   126   S.  W.   868. 

The  fact  that  delay  occurred  in  making  complaint  bears 
upon  the  weight  and  not  the  admissibility  of  the  testi- 
mony.—Trimble  v.  Territory,  8  Ariz.  281,  71  P.  932;  State 
v.  Peres,  27  Mont.  358,  71  P.  162;  Roberson  v.  State,  (Tex. 
Cr.  R.),  49  S.  W.  398. 

California.  "The  complaint  by  the  victim  of  rape  which 
the  law  permits  to  be  introduced  in  evidence  is  one  which 
follows  so  closely  upon  the  occurrence  as  to  be  practically 
the  first  opportunity  available  to  tell  one  in  whom  she 
has  confidence.  It  is  the  fact  of  complaint  immediately 
that  is  supposed  to  show  that  she  was  an  unwilling  vic- 
tim; it  being  presumed  that  an  innocent  woman,  so  as- 
saulted and  outraged,  will  complain  of  the  injury  at  the 
earliest  practicable  moment." — People  v.  Gonzales,  6  Cal. 
App.  255,  91  P.  1013. 

Where  prosecutrix  did  not  make  complaint  for  two 
months,  and  then  only  when  she  was  arrested,  defendant 
is  entitled  to  prove  what  induced  her  to  disclose  her 
charge  to  the  officers. — People  v.  Costa,  24  Cal.  App.  739, 
142  P.  508. 

Colorado.  Complaint  made  from  one  to  seven  days  there- 
after by  letter,  recounting  a  series  of  disgraceful  acts, 
extending  over  several  years,  inadmissible. — Bigcraft  v. 
People,  30  Colo.  298,  70  P.  "417. 


STATEMENTS   ACCOMPANYING  ACTS  97 

North  Dakota.  Declarations  by  prosecutrix  under  the  age 
of  consent,  made  more  than  a  year  after  the  alleged  of- 
fense, and  elicited  involuntarily  by  questions  of  a  com- 
mittee of  school  officials  investigating  her  moral  conduct, 
are  inadmissible.— State  v.  Mackey,  31  N.  D.  200,  153  N. 
W.   982. 

Utah.     The  fact  that  the   prosecutrix   complained   of  the 
outrage  immediately,  or  delayed  making  such  a  complaint 
a   considerable    time,    bears   upon   the    credibility   of   her 
testimony.— State  v.   Halford,   17   Utah  475,   54  P.  819. 
STATEMENTS    MADE    IN    PERSON'S   PRESENCE. 

Statements  made  in  the  presence  of  a  party  who  does 
not  contradict  or  deny  them,  though  he  has  opportunity 
to  do  so  without  intimidation  or  interruption,  are  admis- 
sible.—Humphries  v.  McCraw,  9  Ark.  91;  Hight  v.  Klin- 
gensmith,  75  Ark.  218,  87  S.  W.  138;  Pepper's  Estate,  In 
re,  158  Cal.  619,  112  P.  62;  Rick's  Estate,  In  re,  160  Cal. 
467,  117  P.  539;  Musfelt  v.  State,  64  Neb.  445,  90  S.  W. 
237;  Stowell  v.  Hall,  56  Or.  256,  108  P.  182;  Humphrey 
v.  State,  47  Tex.  Cr.  R.  262,  83  S.  W.  187;  Nowlin  v.  State, 
(Tex.   Cr.   R.),   175   S.   W.   1070. 

Arkansas.  Where  at  the  time  defendant  was  arrested  he 
was  aroused  at  his  home  and  staggered  around  the  room 
as  if  drunk,  it  was  improper  to  admit  evidence  of  his 
grandmother's  remarks  unreplied  to  as  to  where  defend- 
ant had  thrown  his  pistol  and  what  he  said  at  the  time 
he  threw  it  away,  in  the  absence  of  proof  that  he  heard 
the  remarks.— Bloomer  v.  State,  75  Ark.  297,  87  S.  W.  438. 
California.  The  doctrine  of  acquiescence  does  not  apply 
to  proceedings  on  trials  of  controversies,  because  it  is 
not  the  right  or  duty  of  a  party  to  interrupt  the  order  of 
proceedings  in  such  cases  by  denials  or  contradictions, 
and  his  silence  cannot,  therefore,  be  deemed  an  admis- 
sion.—Wilkins  v.  Stidger,  22  Cal.  231. 

While  a  statement  made  in  the  presence  of  accused  is 
not  admissible  as  being  itself  evidence  of  any  fact  nar- 
rated in  such  statement,  it  is  admissible,  primarily,  for 
the  purpose  of  showing  that  the  accused  acquiesced  in  the 
statement  either  by  express  assent  or  silence,  or  by 
such  conduct  as  fairly  implied  assent. — People  v.  Mallon, 
103  Cal.   513,   37   P.   512. 

That  defendants  made  no  claim  to  certain  water  rights 


98  STATEMENTS   ACCOMPANYING   ACTS 

in  a  conversation  relating  thereto  is  relevant. — Williams 
v.  Harter,  121  Cal.  47,  53  P.  405. 

Statement  by  plaintiff,  at  the  time  he  was  counting  out 
money,  made  in  the  presence  of  defendant  who  remained 
silent,  that  he  was  loaning  defendant  the  money,  is  ad- 
missible.—Tibbet  v.  Sue,  125  Cal.  544,  58  P.  160. 

Failure  to  deny  accusation  of  murder,  admissible. — 
People  v.  Amaya,  134  Cal.  531,  66  P.  794. 

That  defendant  made  no  claim  to  a  ditch  running  across 
his  land  when  plaintiff  inquired  as  to  its  ownership  is 
admissible. — Bashore  v.  Mooney,  4  Cal.  App.  276,  87  P.  553. 

Declarations  made  by  a  testatrix  in  the  presence  of  her 
daughter,  showing  an  attempt  by  the  latter  to  unduly  in- 
fluence the  mother  against  a  son,  and  not  denied  or  ob- 
jected to  by  the  daughter,  are  admissible. — Snowball's 
Estate,  In  re,  157  Cal.  301,  107  P.  598. 

Colorado.  The  fact  of  failure  to  answer  a  letter  sent  by 
a  third  person  is  inadmissible. — Lee-Clark-Andreesen  Hard- 
ware Co.  v.  Yankee,  9  Colo.  App.  443,  48  P.  1050. 
Kansas.  Declarations  of  a  party  in  his  own  favor,  though 
made  to  the  opposing  party,  are  not  per  se  evidence  for 
himself  and  are  not  admissible  when  the  opposing  party 
at  the  time  they  were  made  by  words  or  conduct  denied 
their  truth. — Backus  v.  Clark,  1  Kan.  303. 
New  Mexico.  The  correspondence  between  the  president 
and  the  secretary  and  the  treasurer  of  a  corporation  and 
a  person  having  contemporary  business  transactions  with 
it,  in  relation  to  such  transactions,  is  admissible  on  the 
question  of  acquiescence  on  the  part  of  the  corporation 
in  the  statement  of  the  nature  and  terms  of  the  transac- 
tions which  are  the  subject  of  the  correspondence  made 
by  the  other  party  to  them  in  his  letters  to  such  officers. — 
Eagle  Mining  &  Imp.  Co.  v.  Hamilton,  14  N.  M.  271,  91 
P.  718. 

North  Dakota.  Statement  by  seller  impeaching  the  good 
faith  of  the  sale,  made  in  the  presence  of  the  buyer  and 
a  creditor  of  the  seller,  is  admissible  against  the  buyer 
when  he  did  not  contradict  the  statement. — O.  S.  Paulson 
Mercantile  Co.  v.  Seaver,  8  N.  D.  215,  77  N.  W.  1001. 
Oregon.  Statements  inadmissible,  where  the  party  to  be 
charged  was  twelve  feet  away,  but  around  the  corner  of 


STATEMENTS   ACCOMPANYING  ACTS  99 

a  vault,  and  it  did  not  appear  that  he  heard. — Josephi  v. 
Furnish,  27  Or.  260,  41  P.  424. 

"Defendant  could  not  be  bound  by  his  silence  in  court. 
He  was  not  a  party  to  that  cause,  and  had  no  control  or 
management  of  the  case  from  the  standpoint  of  either 
plaintiff  or  defendant;  and  it  was  not  only  not  his  duty  to 
speak  in  refutation  of  what  was  then  being  given  in  evi- 
dence, but  it  was  his  duty  in  deference  to  the  court  and 
the  rules  governing  its  proceedings  when  in  progress  of  a 
trial,  not  to  speak  in  interruption  thereof." — Caseday  v. 
Lindstrom,  44  Or.  309,  75  P.  222. 

A  party  to  a  suit  is  not  bound  by,  or  held  to  admit  as 
true,  every  statement  made  by  his  witnesses  during  the 
trial  of  a  cause,  because  he  does  not  deny  or  contradict 
them  at  the  time. — Patty  v.  Salem  Flouring  Mills  Co.,  53 
Or.  350,  96  P.  1106. 

Declarations  made  by  third  persons  in  the  presence  of 
a  party  who  had  an  opportunity,  without  intimidation  or 
interruption,  to  contradict  or  explain  their  statements,  are 
admissible.— Stowell  v.  Hall,  56  Or.  256,  108  P.  182. 
South  Dakota.  The  silence  of  a  party  against  whom  dam- 
aging facts  are  called  out  in  evidence  is  not  equivalent 
to  an  admission  of  their  truthfulness,  but  is  ground  of  un- 
favorable presumption  against  him. — Enos  v.  St.  Paul  Fire 
&  Marine  Ins.  Co.,  4  S.  D.  639,  57  N.  W.  919. 
Texas.  To  render  admissible  as  admissions  conversation 
between  others  in  a  party's  presence,  it  must  be  made  to 
appear  with  reasonable  certainty  that  he  not  only  heard 
but  understood  the  conversation. — Cabiness  v.  Holland, 
(Tex.  Civ.  App.),  30  S.  W.  63. 

That  defendant,  when  accused  of  killing  deceased,  stood 
mute,  is  relevant. — Williford  v.  State,  36  Tex.  Cr.  R.  414, 
37  S.  W.  761. 

"That  negro  killed  that  woman,"  uttered  by  a  bystander 
when  a  grave  was  being  dug  for  deceased,  is  not  admis- 
sible against  accused  who  said  nothing  in  reply,  but 
dropped  his  head,  got  up  and  walked  around  the  grave, 
where  it  appears  that  all  the  party  were  negroes,  and 
there  being  nothing  which  particularized  defendant  so  as 
to  require  him  to  respond.— Hanna  v.  State,  46  Tex.  Cr. 
R.  5,  79  S.  W.  544. 


100  STATEMENTS  ACCOMPANYING  ACTS 

Failure  of  one  of  the  subscribing  witnesses  to  a  will 
to  furnish  any  information  about  it  to  appraisers  of  the 
estate  in  question,  when  inquiries  were  made  by  them 
about  the  papers  left  by  decedent,  is  admissible  on  the 
question  as  to  whether  such  will  was  a  forgery,  where  it 
appears  that  the  will  was  in  such  person's  possession  at 
the  time.— Dolan  v.  Meehan,  (Tex.  Civ.  App.),  80  S.  W.  99. 

Resolution  of  the  board  of  directors  of  a  bank"  to  whose 
rights  a  firm  consisting  of  defendant  and  others  had  suc- 
ceeded, admissible  to  show  the  partnership,  where  defend- 
ant was  present  and  voted,  making  no  objection  thereto. — 
Hoskins  v.  Velasco  Nat.  Bank,  48  Tex.  Civ.  App.  246,  107 
S.  W.  598. 

The  mere  silence  of  one.  when  facts  are  asserted  in  his 
presence,  is  no  ground  for  presuming  his  acquiescence, 
unless  the  conversation  was  addressed  to  him  under  such 
circumstances  as  to  call  for  a  reply. — Bass  v.  Tolbert,  51 
Tex.  Civ.  App.  437,  112  S.  W.  1077. 

Utah.  Hanging  his  head  and  looking  on  ground  when  de- 
ceased's father  made  an  exclamation  over  the  body. — 
State  v.  Mortensen,  26  Utah  312,  73  P.  562. 

Washington.  Where  plaintiff  and  one  riding  with  her 
were  both  injured  by  an  accident  at  a  street  car  crossing, 
a  statement  by  the  companion  of  the  driver,  made  just 
after  recovering  consciousness  as  to  the  cause  of  the  ac- 
cident, is  inadmissible  as  an  admission  by  acquiescence, 
where  plaintiff  had  been  working  to  bring  her  back  to  con- 
sciousness, and  was  herself  seriously  injured  and  hyster- 
ical.—McCord  v.  Seattle  Electric  Co.,  46  Wash.  145,  89 
P.  491. 

NOTE    V. 

(To   Article   8.) 

The  items  of  evidence  included  in  this  article  are  often 
referred  to  by  the  phrase  "res  gestae,"  which  seems  to  have 
come  into  use  on  account  of  its  convenient  obscurity.  The 
doctrine  of  "res  gestae"  was  much  discussed  in  the  case  of 
Doe  v.  Tatham  (p.  79,  &c).  In  the  course  of  the  argument 
Bosanquet,  J.,  observed,  "How  do  you  translate  res  gestae? 
gestae,  by  whom?"  Parke,  B.,  afterwards  observed,  "The 
acts  by  whomsoever  done  are  res   gestae   if  relevant   to   the 


STATEMENTS   ACCOMPANYING  ACTS  101 

matter  in  issue.  But  the  question  is  what  are  relevant?" 
(7  A.  &  E.  353.)  In  delivering  his  opinion  to  the  House  of 
Lords,  the  same  Judge  laid  down  the  rule  thus:  "Where  any 
facts  are  proper  evidence  upon  an  issue  [i.  e.  when  they  are 
in  issue,  or  relevant  to  the  issue]  all  oral  or  written  declara- 
tions which  can  explain  such  facts  may  be  received  in  evi- 
dence." (Same  case,  4  Bing.  N.  C.  548.)  The  question  asked 
by  Baron  Parke  goes  to  the  root  of  the  whole  subject,  and 
I  have  tried  to  answer  it  at  length  in  the  text,  and  to  give 
it  the  prominence  in  the  statement  of  the  law  which  its  Im- 
portance   deserves. — 1 

Besides  the  cases  cited  in  the  illustrations,  see  cases  as 
to  statements  accompanying  acts  collected  in  1  Ph.  Ev.  152- 
157,  and  T.  E.  ss.  521,  528.  (3  Wigmore  Ev.  §§  1745-1765.) 
I  have  stated,  in  accordance  with  R.  v.  "Walker,  2  M.  &  R. 
212,  that  the  particulars  of  a  complaint  are  not  admissible; 
but  I  have  heard  Willes,  J.,  rule  that  they  were  on  several 
occasions,  vouching  Parke,  B.,  as  his  authority.  R.  v.  Walker 
was  decided  by  Parke,  B.,  in  1839.  Though  he  excluded  the 
statement,  he  said,  "The  sense  of  the  thing  certainly  Is 
that  the  jury  should  in  the  first  instance  know  the  nature  of 
the  complaint  made  by  the  prosecutrix,  and  all  that  she  then 
said.  But  for  reasons  which  I  never  could  understand,  the 
usage  has  obtained  that  the  prosecutrix's  counsel  should 
only  inquire  generally  whether  a  complaint  was  made  by 
the  prosecutrix  of  the  prisoner's  conduct  towards  her,  leav- 
ing the  prisoner's  counsel  to  bring  before  the  jury  the  par- 
ticulars of  that  complaint  by  cross-examination." 

Baron  Bramwell  has  been  in  the  habit,  of  late  years,  of  ad- 
mitting the  complaint  itself.  The  practice  is  certainly  in  ac- 
cordance with   common  sense. 


1  (Res  gestae  are  the  circumstances,  facts  and  declara- 
tions which  grow  out  of  the  main  fact,  are  contemporaneous 
with  it,  and  serve  to  illustrate  its  character.  Carter  v.  Bu- 
channan,   3  Ga.   513.) 


102  FACTS  NECESSARY  TO  EXPLAIN 

Article  9. 
facts  necessary  to  explain  or  introduce  relevant  facts. 

Facts  necessary  to  be  known  to  explain  or  in- 
troduce a  fact  in  issue  or  relevant  or  deemed  to 
be  relevant  to  the  issue,  or  which  support  or  re- 
but an  inference  suggested  by  any  such  fact,  or 
which  establish  the  identity  of  any  thing  or  per- 
son whose  identity  is  in  issue  or  is  or  is  deemed 
to  be  relevant  to  the  issue,  or  which  fix  the  time 
or  place  at  which  any  such  fact  happened,  or 
which  show  that  any  document  produced  is  genu- 
ine or  otherwise,  or  which  show  the  relation  of 
the  parties  by  whom  any  such  fact  was  tran- 
sacted, or  which  afforded  an  opportunity  for  its 
occurrence  or  transaction,  or  which  are  neces- 
sary to  be  known  in  order  to  show  the  relevancy 
of  other  facts,  are  deemed  to  be  relevant  in  so 
far  as  they  are  necessary  for  those  purposes  re- 
spectively. 

Illustrations. 

(a)  The  question  is,  whether  a  writing  published  by  A  of 
B   is   libellous   or   not. 

The  position  and  relations  of  the  parties  at  the  time  when 
the  libel  was  published  may  be  deemed  to  be  relevant  facts, 
as  introductory  to  the  facts  in  issue. 

The  particulars  of  a  dispute  between  A  and  B  about  a 
matter  unconnected  with  the  alleged  libel  are  not  deemed  to 
be  relevant  under  this  article,  though  the  fact  that  there 
was  a  dispute  may  be  deemed  to  be  relevant  if  it  affected 
the  relations  between  A  and  B. — 1 

(b)  The  question  is,  whether  A  wrote  an  anonymous  letter, 
threatening  B,  and  requiring  B  to  meet  the  writer  at  a  cer- 
tain time  and  place  to  satisfy  his  demands. 

The  fact  that  A  met  B  at  that  time  and  place  is  deemed  to 
be  relevant,  as  conduct  subsequent  to  and  affected  by  a  fact 
in  issue. 

1   Common   practice. 


FACTS  NECESSARY  TO  EXPLAIN  103 


The  fact  that  A  had  a  reason,  unconnected  with  the  letter, 
for  being  at  that  time  at  that  place,  is  deemed  to  be  rele- 
vant, as  rebutting  the  inference  suggested  by  his  presence. — 2 

(c)  A  is  tried  for  a  riot,  and  is  proved  to  have  marched 
at  the  head  of  a  mob.  The  cries  of  the  mob  are  deemed  to 
be  relevant,  as  explanatory  of  the  nature  of  the  transac- 
tion.— 3 

(d)  The  question  is,  whether  a  deed  was  forged.  It  pur- 
ports to  be  made  in  the  reign  of  Philip  and  Mary,  and  enum- 
erates   King    Philip's    titles. 

The  fact  that  at  the  alleged  date  of  the  deed,  Acts  of  State 
and  other  records  were  drawn  with  a  different  set  of  titles, 
is  deemed  to  be  relevant. — 4 

(e)  The  question  is,  whether  A  poisoned  B.  Habits  of  B 
known  to  A,  which  would  afford  A  an  opportunity  to  admin- 
ister the  poison,  are  deemed  to  be  relevant  facts. — 5 

(f)  The  question  is,  whether  A  made  a  will  under  undue 
influence.  His  way  of  life  and  relations  with  the  persons  said 
to  have  influenced  him  unduly,  are  deemed  to  be  relevant 
facts. — 6 

(g)  [The  question  is,  whether  a  certain  amount  was  due 
for  material  furnished  in  the  construction  of  a  building.  Tes- 
timony showing  the  mode  in  which  the  books  of  the  material- 
man were  kept  and  that  they  were  correct,  is  relevant.] — 7 

(h)  [The  question  is,  whether  the  clerk  of  deceased  took 
an  assignment  of  a  mortgage  from  deceased  and  foreclosed 
it  for  his  own  use,  or  whether  it  was  the  property  of  the 
widow. 

The  fact  that  about  the  same  time  the  clerk  was  her  agent 
for  collecting  rents  is  admissible  as  introductory  to  the 
clerk's  accounts  showing  charges  against  her  for  the  no- 
tary's fee  for  acknowledging  said  assignment,  paying  record- 
ing fee  and  taxes  on  the  mortgage,  and  also  the  expenses  of 
the   foreclosure   proceeding.] — 8 

(i)  [The  question  is,  whether  A  embezzled  his  employer's 
funds. 

Evidence  tending  to  show  that  A  had  been  living  in  a  man- 
ner not  justified  by  his   income,   is  relevant. 

A  may  show  the  amounts  of  money  received  by  him  and 
the  amount   of   expense   incurred,   as  conducing  to   rebut   the 

2  R.  v.  Barnard,  19  St.  Tri.   815,  &c. 

3  R.  v.   Lord  George  Gordon,   21   St.  Tri.   520. 

4  Lady  Ivy's  Case,   10  St.  Tri.   615. 

5  R.  v.  Donellan,  Wills,  Circ.  Ev.  192;  and  see  my  "Gen- 
eral View  of  the  Criminal  Law,"  p.  338,  &c. 

6  Boyse  v.  Rossborough,   6  H.   L.  C.   42-58. 

7  [West  Coast  Lumber  Co.  v.  Newkirk,  80  Cal.  275,  22  P. 
231.] 

8  [Hunt  v.   Swyney.    (Cal.),   33   P.   854.] 


104  FACTS  NECESSARY  TO  EXPLAIN 

inference   of   his    appropriating   his    employer's   money.] — 9 

(j)  [The  question  is,  whether  a  real  estate  mortgage  was 
cumulative  merely,  or  was  an  entire  substitution  for  an  exist- 
ing chattel  mortgage. 

Testimony  as  to  the  value  of  the  land  upon  which  the  real 
estate  mortgage  was  made  is  relevant,  as  showing  the  prob- 
able sufficiency  of  the  real  estate  security  for  the  amount 
due.] — 10  . 

(k)  [The  question  is,  whether  defendant  had  made  an  un- 
conditional promise  to  pay  the  plaintiff  a  debt  due  to  the 
latter  from    their   common  debtor,   L. 

The  fact  that  after  such  alleged  promise  plaintiff  had  been 
trying  to  negotiate  a  settlement  with  L  is  relevant.] — 11 

(1)  [The  question  is,  whether  A  is  the  one  to  whom  a 
bounty  warrant  was  issued.  His  son  may  testify  to  that  part 
of  his  father's  diary  showing  that  he  took  part  in  the  war 
for  the  participation  in  which  the  bounty  warrant  was  is- 
sued.]— 12 

(m)  [The  question  is,  whether  intervenor  was  the  owner 
of  the  note  sued  on  by  plaintiff,  or  was  the  owner  of  a  simi- 
lar one. 

The  receipt  of  a  justice  of  the  peace,  with  whom  he  had 
left  his  note  for  collection,  is  admissible  for  the  purpose  of 
proving    its    identity.] — 13 

(n)  [Upon  a  trial  for  murder,  where  it  appears  that  the 
injuries  were  inflicted  by  a  certain  kind  of  instrument  or 
weapon,  evidence  tMat  the  defendant  had  such  weapon  in  his 
possession  before  the  killing  is  admissible.] — 14 

(o)  [Upon  the  question  as  to  whether  the  defendant  was 
the  father  of  a  child,  evidence  that  other  persons  had  connec- 
tion with  prosecutrix  at  or  near  the  time  of  gestation  is 
admissible.] — 15 

(p)  [The  question  is,  whether  certain  notes  were  to  be 
paid  by  the  application  of  purchase  money  due  from  plaintiff 
to  defendant  on  a  conveyance  of  land. 

The  business  relations  of  the  parties  and  the  circumstances 
surrounding  them  at  the  time  are  relevant.] — 16 

(q)  [The  question  is,  whether  money  received  by  plain- 
tiff by  the  compromise  of  a  will  contest  was  deposited  in  a 
bank  or  with  plaintiff's  cousins  individually. 


9    [Largent  v.  Beard,   (Tex.  Cr.  App.),  56  S.  W.  620.] 

10  [Cortelyou  v.   McCarthy,   37   Neb.   742,   56  N.   W.   620.] 

11  [Cross  v.  Kistler,  14  Colo.  571,  23  P.  903.] 

12  [Minor  v.   Lumpkin,    (Tex.   Civ.  App.),   29   S.   W.   799.] 

13  [Hall  v.  Stancell,  3  Tex.  400.] 

14  [Morgan  v.  Territory,  16  Okl.  530,  85  P.  718.] 

15  [Stoppert  v.  Nierle,  45  Neb.  105,  63  N.  W.  382.] 

16  [Holman  v.  Raynesford,  3  Kan.  App.  676,  44  P.  910.] 


FACTS  NECESSARY  TO  EXPLAIN  105 

Evidence  that  one  of  the  cousins  advised  plaintiff  to  con- 
test the  will,  that  the  money  when  received  was  divided  be- 
tween plaintiff's  two  cousins,  and  that  they  personally  kept 
an  account  with  plaintiff  and  remitted  various  amounts  to 
him  on  demand  from  time  to  time,  is  relevant.] — 17 

(r)  [The  question  is,  whether  accused  had  such  defect  of 
mind  as  not  to  know  the  nature  of  the  act  with  which  he 
was  charged. 

Testimony  of  his  mother  that  she  had  another  son,  just 
two  years  older  than  defendant,  who  lived  to  be  8  years  old, 
and  was,  all  his  life,  an  imbecile,  is  relevant.] — 18 

(s)  [A  company  was  organized  in  Texas  for  the  purpose 
of  invading  Mexico  and  killed  a  deputy  sheriff  to  prevent  his 
informing  against  them. 

A  red  flag  with  the  words,  "The  Liberal  Party,  Mexico, 
Land  and  Liberty,"  emblazoned  thereon,  and  a  bugle  found 
at  the  camp,  were  admissible  to  show  the  nature  of  the  en- 
terprise.]— 19 

(t)  [The  question  is,  whether  defendants  executed  a  cer- 
tain   promissory    note,    assigned   by    the   payee,    plaintiff. 

A  printed  notice,  bearing  a  photograph  of  the  payee,  and 
offering  a  reward  for  his  apprehension  because  of  his  con- 
nection with  swindling  a  bank,  is  irrelevant.] — 20 

FACTS  NECESSARY  TO  EXPLAIN  OR  INTRODUCE. 

California.  Where  execution  of  a  note  and  a  receipt  ap- 
pear to  have  been  one  transaction  the  receipt  and  oral 
testimony  to  connect  it  with  the  note  are  admissible  to 
prove  the  receipt  to  have  been  the  only  consideration. — 
Talmadge  v.  Stretch,  65  Cal.  XX,  4  P.  15. 
Colorado.  The  question  being  whether  plaintiff  had  been 
employed  to  find  a  purchaser  for  certain  premises,  or  a 
lessee,  evidence  that  defendant,  after  the  employment  of 
plaintiff,  had  refused  to  lease  to  a  third  person,  was  irrele- 
vant.—Donley  v.  Bailey,  48  Colo.  373,  110  P.  65.  * 
Kansas.  Where  the  rights  of  all  the  parties  to  certain 
real  estate  are  derived  from  several  deeds  of  trust  made 
to  one  W.  T.,  and  these  deeds  refe^to  a  certain  will  of 
one  I.  T.,  and  also  to  a  certain  Record  of  a  court  in  Ken- 

17  [Chamberlain  v.  Chamberlain  Banking  House,  (Neb.), 
93    N.    W.    1021.1 

18  [Shaeffer  v.  State,  61  Ark.  241,  32  S.  W.  679.] 

19  [Serrato  v.  State,  74  Tex.  Cr.  R.  413,  171  S.  W.  1133.] 

20  [Sanford   v.   Craig,    52   Neb.    483,   72   N.   W.    864.] 


106  FACTS  NECESSARY  TO  EXPLAIN 

tucky  where  said  will  was  probated,  as  showing  the  na- 
ture and  character  of  the  trust  created  by  said  deeds, 
it  was  proper  to  allow  said  will  and  record  to  be  intro- 
duced in  evidence,  although  the  will  had  never  been  pro- 
bated.—Collier  v.  Blake,  14  Kan.  250. 
Texas.  A  fact  is  admissible  in  evidence,  though  it  would 
not  prove  the  matter  in  issue,  where  it  is  a  necessary 
ingredient  in  such  proof  and  constitutes  an  indispensable 
link  in  the  chain  of  evidence. — Neill  v.  Keese,  5  Tex.  23. 

A  deposition,  inadmissible  because  the  deponent's  knowl- 
edge was  derived  from,  a  letter  and  statement  thereto  at- 
tached and  made  a  part  thereof,  may  be  read  as  explan- 
atory of  the  letter  and  statement  which  were  relevant. — 
Missouri  Pac.  Ry.  Co.  v.  Gernan,  84  Tex.  141,  19  S.  W.  461. 

The  question  being,  whether  accused  killed  his  step- 
son without  justifiable  cause,  testimony  that  his  wife,  at 
the  time  of  the  homicide,  said  to  him,  "You  have  killed 
my  darling  boy,"  to  which  the  defendant  replied,  "God 
damn  your  darling  boy,"  is  admissible,  his  expression 
showing  his  animus,  and  hers  being  necessary  for  a  full 
understanding  of  his  declaration. — Jennings  v.  State,  42 
Tex.  Cr.  R.  78,  57  S.  W.  642. 

When  a  part  of  a  conversation  is  introduced  by  one 
party,  such  other  parts  of  the  same  conversation  as  ex- 
plain the  part  admitted  are  admissible,  for  the  purpose 
of  enabling  the  jury  to  understand  the  meaning  of  the 
entire  conversation. — International  &  G.  N.  R.  Co.  v. 
True,  23  Tex.  Civ.  App.  523,  57  S.  W.  977. 
Washington.  Upon  the  issue  as  to  whether  the  assignee 
of  a  lease  had  reassigned,  it  is  permissible  to  show  what 
the  assignee  did  with  the  lease  and  premises  described 
therein.— Tibbals  v.  Iffland,  10  Wash.  451,  39  P.  102. 

SUPPORTING  INFERENCE  SUGGESTED  BY  FACTS. 

Colorado.  In  a  suit  for  commission  on  the  sale  of  cer- 
tain property,  defendant  denied  the  making  of  any  con- 
tract of  employment.  In  support  of  this  testimony  he 
could  show  that,  prior  to  the  time  of  the  alleged  contract, 
he  had  given  an  option  on  the  property  which  did  not 
expire  for  several  months,  to  parties  who  were  able  and 
willing  to  buy  at  the  price  named. — Dexter  v.  Collins,  21 
Colo.  455,  42  P.  664. 


FACTS  NECESSARL  TO  EXPLAIN       107 

In  an  action  to  cancel  certain  instruments  alleged  to 
have  been  procured  from  plaintiff  while  under  duress,  tes- 
timony that  immediately  after  the  execution  of  the  instru- 
ments plaintiff  was  confined  to  his  bed  because  of  a  shock 
to  his  nervous  system  was  admissible  as  tending  to  show 
his  mental  condition  immediately  after  the  transaction. — 
McClelland  v.  Bullis,  34  Colo.  69,  81  P.  771. 

REBUTTING   INFERENCE. 

Rebuttal  by  defendant  of  testimony  that  his  confession 
was  voluntary,  see  Art.  21. 

California.  As  a  circumstance  tending  to  show  that  de- 
fendant was  the  person  committing  a  robbery,  evidence 
was  admitted  that  certain  boot  marks  of  peculiar  char- 
acteristics were  found  the  day  after  at  the  place  of  the 
robbery,  and  were  traced  for  about  eight  miles  to  a  gate 
leading  to  a  corral  at  his  home.  Defendant  is  permitted 
to  prove  that  on  the  third  day  after  the  robbery,  at  a 
place  more  distant  than  defendant's  residence,  but  within 
three  days'  travel,  two  men  other  than  defendants  were 
seen,  and  that  a  boot  worn  by  one  of  them  left  marks  pre- 
cisely similar  to  those  found  on  the  trail. — People  v. 
Myers,  70  Cal.  582,  12  P.  719. 

Where  a  mortgagor  sought  to  enjoin  the  enforcement 
of  a  deficiency  judgment  taken  by  default,  a  conversation 
between  the  mortgagor  and  a  third  person  in  the  absence 
was  admissible,  where  it  explained  plaintiff's  failure  to 
appear.— Herd  v.  Tuohy,  133  Cal.  55,  65  P.  139. 

To  rebut  a  claim  of  contributory  negligence  in  jump- 
ing from  a  car,  evidence  that  others  who  remained 
on  the  car  were  injured  is  relevant. — Fogel  v.  San  Fran- 
cisco &  S.  M.  Ry.  Co.,  (Cal.),  42  P.  565. 
Idaho.  Where  evidence  of  the  flight  of  accused  is  given, 
he  may  submit  evidence  tending  to  explain  his  flight. — 
State  v.  Baird,  13  Ida.  29,  88  P.  233. 

Montana.  The  fact  that  defendant's  house  was  malic- 
iously burned  a  few  days  before  he  killed  deceased,  is  not 
admissible,  where  it  does  not  appear  that  defendant  par- 
ticipated in  the  burning. — State  v.  Gay,  18  Mont.  51,  44 
P.  411. 
Oregon.     In  rebuttal  of  a  presumption  of  insolvency,  a  de- 


108       FACTS  NECESSARY  TO  EXPLAIN 

fendant  may  introduce  assessment  books  showing  prop- 
erty assessed  to  him  as  reputed  owner. — Beekman  v.  Ham- 
lin, 23  Or.   313,   31  P.  707. 

Where  evidence  of  similar  offenses  is  introduced  to  show 
motive  and  fraudulent  intent,  defendant  may  explain  the 
transactions  referred  to. — State  v.  Germain,  54  Or.  395,  103 
P.  521. 

Texas.  The  fact  that  in  defendant's  gun  and  in  the  body 
of  deceased  three  sizes  of  shot  were  found  being  relevant 
to  the  guilt  of  defendant,  he  may  show  that  mixed  shot 
were  in  common  use  in  that  vicinity,  as  tending  to  rebut 
the  inference  of  guilt. — Cooper  v.  State,  23  Tex.  343. 

Where  tax  books  are  introduced  in  evidence  as  an  ad- 
mission of  plaintiff's  valuation  of  his  property  claimed  to 
be  damaged  by  defendant,  he  may  show  in  rebuttal  that 
the  assessor  set  the  valuation.— Bayer  v.  St.  Louis,  S.  F. 
&  T.  R.  Co.,  97  Tex.  107,  76  S.  W.  441. 

Evidence  that  plaintiff  suing  for  personal  injuries,  and 
her  father,  were  too  poor  to  employ  a  physician  is  rele- 
vant to  explain  the  fact,  developed  on  cross-examination, 
that  no  physician  had  been  employed. — Pecos  &  N.  T.  Ry. 
Co.  v.  Williams,  34  Tex.  Civ.  App.  100,  78  S.  W.  5. 

Where  defendant  has  introduced  evidence  of  threats 
by  deceased  as  indicating  who  was  the  aggressor,  the 
state  may  rebut  by  showing  a  changed  state  of  mind  to- 
wards defendant  on  the  part  of  deceased. — State  v.  Howe, 
(Tex.  Cr.  R.),  177  S.  W.  497. 

ESTABLISHING    IDENTITY. 

Presumption  of  identity  of  person  from  identity  of  name, 
see  Driver  v.  Lanier,  66  Ark.  126,  49  S.  W.  816;  Lee  v. 
Murphy,  119  Cal.  364,  51  P.  549;  Woolsey  v.  Williams,  128 
Cal.  552,  61  P.  670;  Rupert  v.  Penner,  35  Neb.  587,  53 
N.  W.  598. 

California.  When,  as  a  circumstance  to  show  that  de- 
fendant was  present  at  the  scene  of  the  crime,  boot- 
marks  of  peculiar  characteristics  were  traced  from  the 
scene  to  near  the  residence  of  defendant,  evidence  that 
a  man  other  than  defendant  was  seen  in  the  vicinity 
wearing  a  boot  which  left  precisely  similar  marks  was 
erroneously  excluded. — People  v.  Myers,  70  Cal.  582,  12 
P.  719. 


PACTS  NECESSARY  TO  EXPLAIN  109 

Measurements  of  footprints  in  the  vicinity  of  the  body 
of  the  victim,  made  two  weeks  after  the  commission  of 
the  murder,  is  admissible. — People  v.  McCurdy,  68  Cal. 
576,   10  P.   207. 

Acts  of  defendant  on  coming  to  the  house  of  witness  a 
few  days  before  a  murder,  carrying  a  sack  similar  to 
one  found  in  a  thicket  near  the  scene  of  the  murder, 
admitted  to  identify  the  murderer. — People  v.  Ebanks,  117 
Cal.  435,  49  P.  1049. 

Evidence  of  comparison  of  footprints  found  near  the 
scene  of  crime  with  the  measurements  and  appearance  of 
shoes  worn  by  defendant  is  relevant  to  identify  the  cul- 
prit.—People  v.  Rowell,  133  Cal.  39,  65  P.  127. 
Kansas.  That  a  team,  wagon  and  horses  going  over  a 
certain  route  the  day  after  a  horse  was  stolen  corres- 
ponded with  those  of  defendant,  as  did  a  led  horse  with 
the  one  stolen,  was  admissible  to  identify  defendant  as 
the  thief.— State  v.  Folwell,  14  Kan.  105. 

Photograph  of  a  deceased,  proven  to  be  a  good  likeness, 
is  admissible  for  purpose  of  comparison  with  child  in  court, 
to  prove  paternity. — Shorten  v.  Judd,  56  Kan.  43,  42  P. 
337. 

Where  an  offense  is  committed  in  the  darkness,  a  wit- 
ness who  did  not  distinguish  the  features  but  did  hear  the 
voice  of  the  one  who  committed  the  offense,  may  testify 
that  the  defendant  was  the  offender,  and  that  he  recog- 
nized him  by  his  voice. — State  v.  Herbert,  63  Kan.  516, 
66  P.  235. 

Montana.  Testimony  as  to  the  similarity  of  laundry  marks 
on  clothing  left  by  deceased  in  his  trunk  to  those  found 
on  clothing  in  a  valise  which  deceased  took  away  with 
him  and  which  was  in  the  possession  of  accused  after  the 
homicide,  admitted  to  identify  accused  as  the  murderer. — 
State  v.  Lucey,  24  Mont.  295,  61  P.  994. 

A  photograph  is  admissible  to  identify  a  person. — State 
v.  Jones,  48  Mont.  445,  139  P.  441. 

Where  a  photograph  was  properly  admiBsible  to  iden- 
tify accused,  the  fact  that  it  bore  evidence  that  it  was 
taken  while  he  was  an  inmate  of  a  prison  in  another 
state  is  not  sufficient  to  exclude  it. — State  v.  Jones,  48 
Mont.  445,  139  P.  441. 
Nebraska.     In  a  prosecution  for  arson,  evidence  describ- 


110       FACTS  NECESSARY  TO  EXPLAIN 

ing  the  shoes  worn  by  the  accused  and  footprints  found 
near  the  place  where  the  crime  was  committed  is  com- 
petent for  the  purpose  of  identification.— Heidelbaugh  v. 
State,  79  Neb.  499,  113  N.  W.  145. 

The  wreck  which  it  was  alleged  the  prisoner  caused  by 
displacing  the  fixtures  of  a  railway  track  occurred  on  a 
Thursday.  The  evidence  against  him  was  largely  circum- 
stantial. It  was  competent  for  the  state  to  show  that 
the  prisoner  was  possessed  of  a  superstitious  belief  that 
Thursday  was  a  lucky  day  for  him  and  that  anything  he 
attempted  upon  that  day  would  succeed, — as  this  evidence 
tended  to  identify  the  prisoner  as  the  man  who  displaced 
the  fixtures  of  the  railroad  track. — Davis  v.  State,  51  Neb. 
301,  70  N.  W.  984. 

Oklahoma.  Evidence  which  tends  to  identify  the  person 
committing  an  offense  is  admissible,  though  it  shows  the 
commission  of  another  and  distinct  offense. — Dykes  v. 
State,  11  Okl.  Cr.  602,  150  P.  84. 

Oregon.  Declarations  of  a  person  since  deceased  as  to 
his  past  life  and  history  are  admissible  to  identify  him 
as  the  person  whose  past  life  and  history  was  as  thus 
described.— Young  v.  State,  36  Or.  417,  59  P.  812. 
Texas.  Evidence  that  the  wadding  in  one  of  the  barrels 
of  defendant's  gun  was  similar  to  wadding  found  in  the 
yard  of  the  victim  of  a  homicide  after  the  murder  is  ad- 
missible.— Simms  v.   State,   10  Tex.  App.  131. 

Upon  an  issue  as  to  whether  a  deceased  person  had 
been  the  husband  of  a  certain  widow,  testimony  is  admis- 
sible that  the  brother  of  the  widow  had  administered  on 
the  estate  of  a  person  of  the  same  name  as  deceased. — 
Red  River  Cattle  Co.  v.  Wallace,  (Tex.  Civ.  App.),  33  S. 
W.  301. 

Declarations  of  a  person  who  is  now  dead,  or  from  the 
circumstances  such  an  inference  can  be  drawn,  are  ad- 
missible to  prove  his  identity. — Morgan  v.  Butler,  23  Tex. 
Civ.  App.  470,  56  S.  W.  689. 

Statements  of  a  person  as  to  his  birthplace,  family  con- 
nections, etc.,  are  admissible  to  establish  identity  of  de- 
clarant with  the  person  whose  birthplace  and  family  con- 
nections were  as  those  recited. — Nehring  v.  McMurrian, 
94  Tex.  45,  57  S.  W.  943. 


FACTS  NECESSARY  TO  EXPLAIN  111 

A  witness  may  describe  tracks  made  near  the  scene 
of  the  burglary,  for  the  purpose  of  comparison  with  those 
known  to  be  made  by  accused. — Boyman  v.  State,  59  Tex. 
Cr.  R.  23,  126  S.  W.  1142.  See  Cordes  v.  State,  54  Tex. 
Cr.  R.  204,  112  S.  W.  943. 

In  a  prosecution  for  burglary,  where  it  appeared  in  evi- 
dence that  within  about  a  mile  from  the  scene  of  bur- 
glary were  found  tin  cans  marked  Van  Camp's  Pork  and 
Beans,  a  bottle  marked  Jersey  Cream  Whiskey  and 
stumps  of  cigarettes,  the  state  may  show  by  the  sheriff 
whether  defendant  while  in  jail  ate  Van  Camp's  Pork 
and  Beans,  drank  Jersey  Cream  Whiskey,  or  smoked 
cigarettes.— Bowen  v.  State,  60  Tex.  Cr.  R.  595,  133  S.  W. 
256. 

Recognition  of  the  voice  of  accused  is  a  means  of  prov- 
ing identity.— Collins  v.  State,  (Tex.  Cr.  R.),  178  S.  W. 
345. 

Utah.  Where  it  was  alleged  by  accused  that  another  per- 
son had  committed  the  murder  in  question,  the  fact  that 
such  person  did  not  have  blood  on  his  clothing  a  few 
hours  afterwards  is  relevant,  where  it  appears  that  the 
person  committing  the  murder  must  have  been  besmeared 
with  blood.— People  v.  Thiede,  11  Utah  241,  39  P.  837. 

Identification  of  a  person  by  sound  of  voice  must  be 
based  upon  previous  knowledge  of  such  voice. — State  v. 
Knras,  43  Utah  506,  136  P.  788. 

Washington.  It  being  necessary  to  show  that  one  accused 
of  burglary  was  in  the  vicinity  of  the  house  entered  a 
short  time  before  the  crime,  evidence  is  admissible  that 
on  the  day  before  a  safe  was  blown  open  in  a  store  about 
ten  miles  away,  and  that  certain  articles  taken  therefrom 
were  found  on  defendant  when  he  was  arrested,  though 
such  testimony  tends  to  show  that  accused  committed 
another  crime  than  the  one  for  which  he  was  being  tried. 
—State  v.  Leroy,  61  Wash.  405,  112  P.  635. 

Wyoming.  Murder.  Defendant's  assault  shortly  before 
on  the  decedent's  father  admissible  to  show  identity. — 
Horn  v.  State,  12  Wyo.  80,  73  P.  705. 


112  PACTS  NECESSARY  TO  EXPLAIN 

FIXING  TIME   AND   PLACE. 

California.  Evidence  of  witnesses  who  testified  as  to  the 
location  of  the  body  of  one  killed  when  found  and  the 
distance  which  they  measured  from  that  point  to  the 
boundary  of  S.  county,  is  admissible  to  fix  the  venue  in 
that  county,  such  distance  being  within  the  500  feet  from 
such  county  required  to  fix  the  venue  therein. — People  v. 
Cipola,  155  Cal.  224,  100  P.  252. 

Colorado.  Testimony  of  a  volunteer  of  the  government 
weather  bureau  who  kept  records  of  the  maximum  and 
minimum  temperature  at  a  place  twenty  miles  distant  from 
the  cabin  where  a  person  was  found  dead  from  a  bullet 
wound,  was  admissible  to  show  the  probability  that  ink 
found  not  frozen  therein  was  placed  there  after  the 
murder.— Van  Wyk  v.  People,  45  Colo.  1,  99  P.  1009. 
Texas.  A  witness  may,  in  order  to  fix  the  time  when  he 
had  seen  defendants  together,  testify  that  he  first  heard 
of  a  burglary  one  morning,  and  that  the  night  before  he 
had  seen  defendants  together  at  a  place  named. — Cas- 
tenara  v.  State,  70  Tex.  Cr.  R.  436,  156  S.  W.  1180. 

RELATION    OF    PARTIES. 

California.  As  a  circumstance  closely  connected  in  point 
of  time  with  the  parties  and  with  the  taking  of  a  watch 
by  accused  from  prosecuting  witness,  the  fact  that  a  few 
minutes  after  they  were  together  a  witness  noticed  ac- 
cused carrying  the  cane  of  prosecuting  witness  after  com- 
ing away  from  the  latter  is  admissible  as  showing  the  rela- 
tion of  the  parties.— People  v.  Taylor,  136  Cal.  19,  69 
P.   292. 

Evidence  of  previous  or  subsequent  intercourse  between 
mother  and  alleged  father  are  competent  to  show  prob- 
ability of  parentage. — Gird's  Estate,  In  re,  157  Cal.  499, 
108  P.  505. 

Nebraska.  The  circumstances  of  the  parties  to  the  suit, 
and  the  position  in  which  they  stood  when  the  matter  in 
controversy  occurred  are  proper  subjects  of  evidence. — 
Blomgren  v.  Anderson,  4S  Neb.  240,  67  N.  W.  186. 

Respective  positions  of  decedent  and  the  engine  by 
which  he  was  injured,  shortly  after  the  accident,  were  ad- 
missible as  res  gestae. — Chicago,  B.  &  Q.  R.  Co.  v.  Oyster, 
58  Neb.  1,  78  N.  W.  359. 


FACTS  NECESSARY  TO  EXPLAIN       113 

Suit  upon  a  note  alleged  to  have  been  given  by  de- 
ceased. A  defense  was  that  deceased,  at  the  date  of  the 
note,  was  then  in  no  business  wherein  or  by  reason  where- 
of he  could  require  so  large  a  sum  of  money.  Plaintiff 
was  allowed  to  prove  that  some  years  before  deceased 
had  owed  her  considerable  money,  and  to  produce  a  series 
of  checks  payable  to  him,  which  had  been  charged  to  plain- 
tiff's account  in  the  bank,  the  last  one  of  which  checks  was 
dated  the  day  before  the  note. — Gandy  v.  Bissell's  Estate, 
3  Neb.  (Unof.)  47,  90  N.  W.  883. 

Oregon.  One  suing  for  the  consideration  of  a  deed  exe- 
cuted by  him  may,  by  way  of  explanation  or  introduction, 
show  that  it  was  executed  to  remedy  a  defective  convey- 
ance executed  by  his  guardian,  and  introduce  a  record  of 
the  proceedings  in  the  probate  court  to  that  end,  though 
they  were  void. — Stinson  v.  Porter,  12  Or.  444,  8  P.  454. 
Texas.  Upon  the  issue  as  to  whether  a  deed  was  forged 
by  a  certain  person,  testimony  that  he  and  the  person 
named  as  grantee  were  often  seen  together  in  the  land 
office  is  admissible. — Stone  v.  Moore,  (Tex.  Civ.  App.),  48 
S.   W.   1097. 

Evidence  that  a  few  weeks  before  the  killing,  deceased 
and  accused,  as  partners,  had  quarreled  over  the  books, 
is  admissible. — Corbitt  v.  State,  72  Tex.  Cr.  R.  396,  163 
S.  \V.  436. 

Washington.  Where  fraud  is  alleged  in  the  procurement 
of  a  note  or  of  forgery  in  its  execution,  a  very  large  lati- 
tude is  allowed  in  admitting  testimony  to  show  the  rela- 
tions  of  the  parties. — Crane  v.  Dexter,  H.  &  Co.,  5  Wash. 
479,  32  P.  223. 

Upon  the  question  as  to  whether  ;i  mortgagor  deposited 
the  proceeds  of  the  sale  of  mortgaged  sheep,  pelts  and 
wool  with  a  hank  conducted  by  the  holder  of  a  first  mort- 
gage and  his  brother,  as  partners,  who  wrongfully  per- 
mitted the  mortgagor  to  divert  the  money  to  other  pur- 
poses than  the  satisfaction  of  defendant's  mortgage,  where- 
by plaintiff  lost  his  security,  evidence  is  admissible,  as 
showing  the  relation  of  parties,  that  the  mortgagor  depos- 
ited money  other  than  such  proceeds,  receiving  credit  in 
a  single  running  account,  and  checks  drawn  by  the  mort- 
gagor  in    favor  of   plaintiff,   defendant   and   other   parties. 


114  FACTS  NECESSARY  TO  EXPLAIN 

were  relevant. — Presby  v.   Melgard,   48  Wash.   689,   94  P. 
641. 

OPPORTUNITY. 
Arkansas.  As  showing  that  defendant  could  not  have  been 
the  murderer  of  one  who  was  killed  at  11  o'clock  at  night, 
evidence  is  relevant  that  accused  was  at  his  own  home 
seven  miles  away  at  a  late  hour  on  the  same  night. — 
Kinnemer  v.  State,  66  Ark.  206,  49  S.  W.  815. 
California.  The  opportunity  to  commit  an  offense  can 
have  no  weight  apart  from  other  circumstances,  unless  it 
excludes  all  real  opportunity  for  its  commission,  and, 
standing  alone,  is  insufficient  to  sustain  a  conviction. — 
People  v.  Tarbox,  115  Cal.  57,  46  P.  896. 

In  a  murder  trial,  where  it  was  claimed  that  deceased 
was  killed  by  a  mob  which  took  him  from  the  custody  of 
defendants  as  officers  of  the  law,  it  was  proper  to  intro- 
duce evidence  showing  that  the  community  in  which  the 
homicide  occurred  was  sparsely  settled  and  to  show  the 
whereabouts  of  a  number  of  persons  at  the  time. — Peo- 
ple v.  Van  Horn,  119  Cal.  323.  51  P.  538. 
Texas.  Where  it  was  in  evidence  that  prior  to  an  alleged 
offense  defendant  was  in  a  wagon  some  distance  in  the 
rear  of  three  wagons  in  a  long  lane,  and  overtook  the 
other  wagons  in  the  lane  after  the  commission  of  the  of- 
fense, he  was  entitled  to  offer  the  result  of  experiments 
showing  that  he  could  not  have  committed  the  offense 
and  afterwards  overtaken  the  wagons. — Clark  v.  State, 
38  Tex.  Cr.  R.  30,  40  S.  W.  992. 

FACTS   NECESSARY  TO  SHOW   RELEVANCY  OF 
OTHER    FACTS. 
California.     On  a  plea  of  insanity  evidence  is  admissible 
of  insanity  or  mental  unsoundness  of  accused's  near  rela- 
tives.—People  v.   Smith,   31   Cal.   466;    State  v.  Fetter,   25 
Iowa  67. 

Where  a  witness  was  called  for  the  purpose  of  proving 
threats  by  the  deceased  made  in  a  conversation  with  wit- 
ness, what  the  witness  said  in  the  course  of  such  conver- 
sation is  admissible,  in  order  to  show  the  true  meaning 
and  significant  of  what  deceased  said. — People  v.  Phelan, 
123  Cal.  551,  56  P.  424. 

Nebraska.     A  witness   may  testify  as  to  the   means  em- 
ployed to  identify  the  property  which  he  was  instructed 


SIMILAR  BUT   UNCONNECTED   FACTS  115 

to  seize  to  be  used  as  evidence  in  a  criminal  case. — Rus- 
sell v.  State,  66  Neb.  497,  92  N.  W.  751. 
Texas.     An  order  of  court  for  the  sale  of  land  is  admis- 
sible as  laying  the  foundation   for  proof  of  a  legal  and 
valid  sale  thereunder. — Neill  v.  Keese,  5  Tex.  23. 

CHAPTER  III. 

OCCURRENCES  SIMILAR  TO  BUT  UNCONNECTED 
WITH  THE  FACTS  IN  ISSUE,  IRRELEVANT  EXCEPT 
IN  CERTAIN  CASES. 

Article  10.* 
similar  but  unconnected  facts. 

A  fact  which  renders  the  existence  or  non-ex- 
istence of  any  fact  in  issue  probable  by  reason  of 
its  general  resemblance  thereto  and  not  by  reason 
of  its  being  connected  therewith  in  any  of  the 
ways  specified  in  Articles  3-9,  both  inclusive,  is 
deemed  not  to  be  relevant  to  such  fact  except  in 
the  cases  specially  excepted  in  this  chapter. 

niustracions. 

(a)  The  question  is,  whether  A  committed  a  crime. 

The  fact  that  he  formerly  committed  another  crime  of  the 
same  sort,  and  had  a  tendency  to  commit  such  crimes,  is 
irrelevant. — 1 

(b)  The  question  is,  whether  A,  a  brewer,  sold  good  beer 
to  B,  a  publican.  The  fact  that  A  sold  good  beer  to  C,  D, 
and  E,  other  publlaans,  is  irrelevant — 2  (unless  it  is  shown 
that  the  beer  sold  to  all   is  of  the  same  brewing). — 3 

(c)  [The  question  is,  whether  A  committed  larceny  under 
a  conspiracy   to  steal  horses   to  be  sold  by  him. 

1  R.  v.  Cole.  1  Phi.  Ev.  508  (said  to  have  been  decided 
by  all  the  judges  in   Mich.  Term,   1810). 

2  Holcombe    v.    Hewson,    2    Camp.    391. 

3  See   Illustrations   to  Article   3. 


*  See  Note  at  end  of  Article. 


116  SIMILAR  BUT  "UNCONNECTED  FACTS 

Evidence  of  stealing  iher  horses  by  co-conspirators  and 
disposal   of  them   by   defendant   is  relevant.] — 4 

(d)  [The  question  is,  whether  A  made  and  uttered  a  fic- 
titious order  for  the  payment  of  money. 

The  fact  that  he  wrote  a  check  under  an  assumed  name  is 
irrelevant.] — 5 

(e)  [The  question  is,  whether  a  certain  fire  was  caused  by 
sparks  from  defendant's  engine. 

The  fact  that  other  engines  of  defendant  had  been  the 
cause  of  fires  near  the  track  is  relevant.] — 6 

(f)  The  question  is,  what  is  the  value  of  services  of  one 
not  in  the  real  estate  brokerage  business  who  assists  in  the 
sale  of  property. 

The  customary  commissions  of  persons  in  such  business 
is  relevant.] — 7 

(g)  [On  a  question  as  to  the  profits  of  a  business  for  the 
year  1906,  the  matter  of  the  profit  or  loss  of  1905  is  im- 
material.]— 8 

(h)  [The  question  is,  whether  defendant  had  satisfied  a 
note  by  paying  plaintiff's  expenses  on  a  trip  to  Europe, 
or  whether  plaintiff  accompanied  defendant  on  the  trip  as  a 
guest. 

Evidence  that  on  other  occasions  defendant  had  invited 
plaintiff  to  visit  her  and  had  paid  her  hotel  bills  and  travel- 
ing expenses  is  relevant.] — 9 

(i)  [The  question  is,  whether  A  was  negligent  on  a  cer- 
tain occasion. 

The  fact  that  he  had  been  negligent  on  other  occasions  is 
irrelevant.] — 10 

(j)  [The  question  is,  whether  cotton  seed  meal  sold  by 
defendant  to  plaintiff  to  be  fed  to  cattle  was  unwholesome, 
whereby  his  cattle  were  injured. 

Evidence  that  the  cattle  of  other  parties  eating  meal  sold 
by  defendant  from  the  same  pile  or  car  were  injured,  is  rele- 
vant.]— 11 

(k)  [The  question  is,  whether  defendant  had  sold  a  note 
to  plaintiff  at  a  great  discount. 

4  [State   v.   Allen,    34   Mont.    403,    87   P.    177.] 

5  [People  v.  Arlington,   123  Cal.   356,   55  P.  1003.] 

6  [Steele  v.  Pacific  Coast  Ry.  Co.,   74  Cal.  373,   15  P.   851.] 

7  [Fleming  v.  Wells,  45  Colo.  255,  101  P.  66;  Geiger  v. 
Kiser,    47   Colo.    297,    107   P.    267.] 

8  [Hatzfeld  v.  Walsh,  55  Tex.  Civ.  App.  573,  120  S.  W. 
525.] 

9  [Zane  v.  De  Onativia,  139  Cal.  328,  73  P.  856.] 

10  [Mulville  v.  Pacific  Mut.  Life  Ins.  Co.,  19  Mont.  95,  47 
P.   651.] 

11  [Houston  Cotton  Oil  Co.  v.  Trammell,  (Tex.  Civ.  App.), 
72   S.   W.    244.] 


SIMILAR  BUT  UNCONNECTED  FACTS  117 

Evidence  that  at  about  the  same  time  defendant  had  sold 
other  notes  at  a  great  discount  is  admissible.] — 12 

(1)  [The  question  is,  as  to  the  character  of  a  storm  at  a 
certain   place. 

Testimony  of  a  witness  who  was  15  or  16  miles  seaward 
at  the  time,  as  to  its  character  there,  is  relevant.] — 13 

(m)  [The  question  is,  whether  the  fire  which  destroyed 
plaintiff's  property  was  set  out  by  an  engine  of  defendant. 

The  fact  that  other  fires  had  been  set  by  engines  of  defend- 
ant in  the  vicinity  of  the  fire  complained  of,  is  relevant.] — 14 

(n)  [The  question  is,  whether  defendant's  list  of  society 
people  was  copied  from  that  of  plaintiff. 

The  fact  that  in  2,800  identical  names  39  errors  in  com- 
plainant's book  appeared  in  defendant's,   is  relevant.] — 15 

(o)  [The  question  is,  whether  copyrighted  head  notes  to 
legal  opinions  had  been  infringed. 

Similarities  in  language  used  in  400  instances  out  of  13,300, 
of  such  a  nature  as  to  indicate  that  the  editors  of  the  second 
work  could  not  have  used  it  without  making  an  unfair  use 
of  the  copyrighted  matter  in  such  cases,  admitted  to  show  a 
systematic  use  of  the  copyrighted  work.] — 16 

(p)  [The  question  is,  what  was  the  prevailing  rainfall  at 
a  certain  place  during  a  certain  period. 

Records  of  the  nearest  weather  bureau,  located  at  consid- 
erable  distance  from   such   place,   are   relevant.] — 17 

(q)  [The  question  is,  whether  the  burning  of  a  lot  of  cord- 
wood  was  incendiary. 

The  fact  that  witness,  one  of  the  owners,  had  taken  ex- 
traordinary precautions  because  of  ten  other  fires  that  had 
occurred  in  the  same  locality  within  a  few  months,  between 
6  and   7   o'clock   in   the  evening,   was  admissible.] — 18 

(r)  The  question  is,  whether  plaintiff's  land  was  inundated 
by  water  backing  up  from  defendant's  dam  at  flood  time. 

The  fact  that  others  had  maintained  dams  in  the  stream 
at  the  same  place,  which  did  not  cause  water  to  back  up  on 
land  now  occupied  by  plaintiff,  is  irrelevant,  where  it  is  not 
shown  that  such  dams  were  of  the  same  kind  or  height,  or 
that  they  were  in  the  stream  at  flood  time.] — 19 

12  [Turner  v.  Luning,  105  Cal.  124,  38  P.  687.] 

13  [Astoria  &  C.  R.  R.  Co.  v.  Kern,   44  Or.  538,  76  P.   14.] 

14  [Podey  v.  Northern  Pac.  Ry.  Co.,  21  Ida.  713,  123  P. 
836.] 

15  [List  Pub.   Co.  v.  Keller,   14   C.  C.  A.   213,   30  Fed.   772.] 

16  [West  Pub.  Co.  v.  Lawyers'  Co-op.  Pub.  Co.,  25  C.  C. 
A.   648,   79   Fed.   756.] 

17  [Peterson  v.  Arland,  79  Wash.  679,  141  P.  63.] 

18  [State  v.  McMahon,  17  Nev.  365,   30  P.   1000.] 

19  [Crossen  v.  Gandy,   42  Or.   282,  70  P.   906.] 


118  SIMILAR  BUT   UNCONNECTED  FACTS 

(s)  [The  question  is,  whether  plaintiff's  bookkeeper  failed 
to  give  credit  to  defendants  for  their  alleged  payment  of  a 
note. 

The  fact  that  he  had  mistakenly  omitted  to  credit  a  witness 
with  payment  on  a  certain  account  is  irrelevant.] — 20 

(t)  [The  question  is,  whether  a  grain  elevator  and  ap- 
proach thereto  were  reasonably  safe  for  teams  with  loaded 
wagons  to  be  driven  up  the  approach  and  into  the  elevator 
and  unloaded. 

The  fact  that  notwithstanding  many  thousands  of  loads  of 
grain  had  been  received  and  unloaded  during  the  five  years 
previous  to  the  happening  of  this  accident  not  a  similar  acci- 
dent of  a  similar  kind  had  ever  before  occurred,  is  relevant.] 
—21 

(u)  [The  question  is,  whether  plaintiff,  having,  as  result 
of  injuries,  a  form  of  insanity  known  as  melancholia,  was  in- 
capacitated from  work  thereby. 

Testimony  of  the  superintendent  of  an  insane  asylum  that 
most  of  the  patients  therein  were  incapacitated  to  do  work, 
is  irrelevant.] — 22 

(v)  [The  question  is,  did  defendant  agree  to  pay  plaintiffs, 
as  commissions  for  sale  of  land,  5  per  cent  of  the  proceeds 
of  the  sale  of  certain  land  at  $17  per  acre,  or  all  over  and 
above  the  proceeds  of  a  sale  at  $17  per  acre. 

Evidence  of  defendant's  dealings  with  other  real  estate 
agents  and  the  price  at  which  he  listed  the  land  to  them 
is   irrelevant.] — 23 

(w)  [The  question  being,  what  was  the  actual  cost  of  la- 
bor and  material  required  to  take  down  a  wall  and  replace 
it  in  the  condition  required  by  a  contract,  a  bid  by  certain 
parties  to  rebuild  the  wall  was  irrelevant.] — 24 

.SIMILAR    BUT    UNCONNECTED    OCCURRENCES. 
In   General. 

Where  one  is  on  trial  charged  with  attempting  to  bribe 
a  member  of  the  city  council,  it  is  error  to  admit  evidence 
of  an  attempt  to  bribe  another  official  to  do  an  act  which 
he  thought  would  tend  to  promote  the  same  scheme. — 
People  v.  Sharp,  107  N.  Y.  427,  14  N.  E.  319,  cited  with 
approval  in:  People  v.  Glass,  158  Cal.  650,  112  P.  287; 
also  People  v.  Hurley,  126  Cal.  351,  58  P.  814. 

20  [McCown  v.  Wilson,   91  Ark.   153,  122  S.  W.   478.] 

21  [Field   v.    Davis,    27    Kan.    400.] 

22  [Western  Union  Tel.  Co.  v.  Tweed,  (Tex.  Civ.  App.),  138 
S.  W.   1155.] 

23  [J.  B.  Lloyd  &  Son  v.  Kerley,  (Tex.  Civ.  App.),  106  S. 
W.   696.] 

24  [Hulst  v.  Benevolent  Hall  Ass'n,  9  S.  D.  144,  68  N.  W. 
200.] 


SIMILAR  BUT   UNCONNECTED   FACTS  119 

California.  In  an  action  to  recover  loss  sustained  by  the 
burning  of  a  building  alleged  to  have  been  caused  by  the 
negligence  of  the  defendant,  evidence  on  his  part  tending 
to  show  that  other  buildings  in  the  same  town  were  soon 
after  set  on  fire  by  incendiaries  is  irrelevant. — Drake  v. 
Foster,  52  Cal.  225. 

Evidence  that  defendant's  driver,  who  was  in  charge  of 
a  team  which  injured  plaintiff,  was  a  good,  first-class 
driver,  careful  in  handling  horses,  and  that  during  the 
four  years  he  had  been  in  the  employ  of  defendant  he 
had  never  been  guilty  of  any  mismanagement  or  careless- 
ness in  the  conduct  or  care  of  the  team,  is  inadmissible. — 
Towle  v.  Pacific  Imp.  Co.,  98  Cal.  342,  33  P.  207. 

The  question  being  as  to  whether  a  hall  was  lighted  at 
the  time  plaintiff  called  to  take  an  elevator,  evidence  as  to 
whether  it  was  lighted  on  other  days  of  the  same  month 
at  the  same  time  of  day  was  inadmissible. — Muller  v. 
Hale,  138  Cal.  163,  71  P.  81. 

Upon  the  question  whether  defendants  have  the  right 
to  change  the  location  of  a  ditch  carrying  water  to  their 
premises  over  plaintiff's  land,  the  fact  that  they  had 
changed  the  location  of  their  ditch  on  the  land  of  another 
is  irrelevant.— Vestal  v.   Young,   147   Cal.   721,   82   P.   383. 

Where  defendant  had  only  one  quality  of  wheat  for  sale, 
evidence  of  warranties  of  wheat  in  sales  to  other  parties 
is  relevant  upon  the  issue  of  a  warranty  to  plaintiff. — 
Moody  v.  Peirano,  4  Cal.  App.  411,  88  P.  380. 

Defendant  sued  on  account  of  delay  in  accepting  grapes 
at  his  winery  may  show  the  congested  condition  and  lack 
of  facilities  at  the  winery  for  accepting  grapes,  and  that 
other  sellers  were  delayed  by  reason  thereof. — Leonhart 
v.  California  Wine  Ass'n,  5  Cal.  App.  19,  89  P.  847. 

Testimony  as  to  a  crop  of  sweet  potatoes  gathered  sev- 
eral years  before  from  the  same  land  which  was  over- 
flowed is  admissible  for  the  purpose  of  showing  that  the 
land  was  peculiarly  adapted  for  the  cultivation  of  the 
crop  mentioned. — Dennis  v.  Crocker-Huffman  Land  & 
Water  Co.,  6  Cal.  App.  58,  91  P.  425. 

Evidence  of  the  condition  of  other  buildings  after  an 
earthquake  has  no  tendency  to  show  whether  another 
neighboring  building  fell  from  an  earthquake  before  a  fire 


120  SIMILAR  BUT   UNCONNECTED   FACTS 

started  therein. — Davis  v.  Connecticut  Fire  Ins.  Co.,  158 
Cal.  766,  112  P.  549. 

Colorado.  On  an  issue  that  a  ticket  sold  by  defendant  to 
plaintiff  was  not  good  over  that  portion  of  road  on  which 
plaintiff  was  attempting  to  ride,  evidence  that  defendant 
had  sold  a  similar  ticket  to  another  about  same  time,  on 
which  he  rode  without  objection,  irrelevant. — Oppenheimer 
v.  Denver  &  R.  G.  R.  Co.,  9  Colo.  320,  12  P.  217. 

Dissimilarity  in  different  signatures  of  another  person 
have  no  tendency  to  show  that  there  was  a  variance  be- 
tween signatures  of  deceased. — Brown  v.  Tourtelotte,  24 
Colo.  204,  50  P.  195. 

To  show  the  condition  of  a  bath  tub  by  which  plaintiff 
was  injured,  the  condition  of  all  bath  tubs  of  defendant 
is  admissible  to  show  want  of  care  and  inspection. — 
Daniels  v.  Stock,  23  Colo.  App.  529,  130  P.  1031. 
Kansas.  Passenger  ejected  from  train  for  not  procuring 
ticket  before  entering,  in  accordance  with  alleged  rule 
of  carrier.  Evidence  by  plaintiff  that  the  rule  was  not  en- 
forced and  that  other  persons  had  paid  fare  to  the  con- 
ductor, admissible. — Brown  v.  Kansas  City,  Ft.  S.  &  G. 
R.  Co.,  38  Kan.  634,  16  P.  942. 

Montana.  The  fact  that  a  stove  purchased  by  plaintiff 
from  defendant  is  worthless  cannot  be  proved  by  showing 
that  a  stove  purchased  by  another  person  from  defendant, 
bearing  the  same  trade  mark,  was  worthless. — Lander  v. 
Sheehan,  32  Mont.  25,  79  P.  406. 

Nevada.  Where  the  overturning  of  lumber  from  a  car  and 
the  consequent  injury  to  plaintiff  arose  from  a  defective 
track,  testimony  regarding  lumber  slipping  from  the  car 
because  of  insecure  loading  was  inadmissible. — Flodin  v. 
Verdi  Lumber  Co.,  37  Nev.  294,  142  P.  531. 
North  Dakota.  Other  contracts  claimed  to  be  in  violation 
of  the  statute  set  up  as  a  defense  are  Inadmissible. — 
Sucker  State  Drill  Co.  v.  Wirtz  Bros.,  17  N.  D.  313,  115 
N.  W.  844. 

Oregon.     Proof   of   particular   instances    in    which    street 
cars  were  operated  at  a  given  speed  is  not  relevant  to 
show  the   speed  of  a  car  at  the  time  of  an  accident. — 
Wade  v.  City  &  Suburban  R.  Co.,  36  Or.  311,  59  P.  875. 
Texas.     Contract  between   a  third   person   and   plaintiffs' 


SIMILAR  BUT  UNCONNECTED  FACTS  121 

landlords,  by  which  water  was  to  be  furnished  the  latter, 
is  immaterial  in  an  action  by  plaintiffs  against  their  land- 
lords for  breach  of  contract  to  furnish  water. — Stockton 
v.  Brown,  (Tex.  Civ.  App.),  106  S.  W.  427. 

Evidence  of  payment  of  city  taxes  is  no  evidence  of 
payment  of  state  and  county  taxes. — State  v.  Quillen,  (Tex. 
Civ.  App.),  115  S.  W.  660. 

Deeds  containing  restrictions  against  the  use  of  prop- 
erty in  other  neighboring  blocks  are  admissible  as  tend- 
ing to  show  such  restriction  in  the  block  in  question. — 
Lowrance  v.  Woods,  54  Tex.  Civ.  App.  233,  118  S.  W.  551. 

The  fact  that  fire  broke  out  in  cotton  loaded  on  a  barge 
is  no  evidence  that  fire  was  concealed  in  plaintiff's  cotton 
when  it  was  shipped— S.  Samuels  &  Co.  v.  Texas  &  N. 
O.  R.  Co.,  (Tex.  Civ.  App.),  150  S.  W.  291. 

Evidence  that  similar  work  done  for  other  parties  was 
inefficient  is  inadmissible  to  show  the  quality  of  work 
done. for  defendant. — Randle  v.  Barden,  (Tex.  Civ.  App.), 
164  S.  W.  1063. 

Utah.  The  mere  fact  that  a  person  has  made  certain 
statements  one  day  to  a  particular  person  is  not  evidence 
from  which  it  may  be  inferred  that  he  in  fact  made  the 
same  or  similar  statements  to  another  person  at  another 
time  and  place. — Ogden  Valley  Trout  &  Resort  Co.  v. 
Lewis,  41  Utah  183,  125  P.  687. 

Washington.  In  an  action  for  damages  for  ejection  from 
a  street  car  on  account  of  alleged  non-payment  of  fare, 
the  fact  that  plaintiff  had  been  put  off  a  railroad  car 
for  non-payment  of  fare  is  irrelevant. — Sprenger  v.  Ta- 
coma  Traction  Co.,  15  Wash.  660,  47  P.  17. 

That  other  fires  occurring  in  the  vicinity  of  plaintiff's 
lodging   had   been   caused   by   an   open   burner  which   de- 
fendant maintained  at  its   mill,   admitted. — S.    Yamamoto 
v.  Puget  Sound  Lumber  Co.,  84  Wash.  411,  146  P.  861. 
Similarity    of   Conditions. 

See  "Experiments,"  infra,  this  article. 
California.  The  character  of  land  upon  an  adjoining  prop- 
erty has  no  bearing  on  the  question  as  to  the  amount  of 
cream  fifty  cows  would  produce,  it  not  being  shown  that 
the  quality  of  land  on  the  two  ranches  was  the  same. — 
Converse  v.  Ferguson,  166  Cal.  1,  134  P.  977. 
Colorado.     Testimony  to  show  payment  by  defendant  to 


122  SIMILAR  BUT  UNCONNECTED  FACTS 

a  third  person  for  cattle  killed  by  its  trains  is  inadmis- 
sible, where  there  is  no  proof  that  they  were  killed  by 
the  same  train  that  killed  plaintiff's. — Chicago,  R.  I.  & 
P.  Ry.  Co.  v.  Rhodes,  21  Colo.  App.  229,  121  P.  769. 
Idaho.  In  determining  whether  a  safe  warranted  to  be 
fireproof  is  in  fact  fireproof,  evidence  may  be  received 
showing  that  safes  made  by  the  same  company,  of  like 
kind  and  material  and  method  of  construction,  had  passed 
through  fires  and  withstood  the  effects  of  heat  without 
material  injury  to  their  contents,  but  comparison  cannot 
be  made  with  safes  made  by  other  manufacturers,  of  dif- 
ferent kind  and  material  and  constructed  upon  different 
plans  and  theories. — Barnett  v.  Hogan,  18  Ida.  104,  108 
P.  743. 

Montana.  The  fact  that  silt  was  not  deposited  on  an- 
other ranch  above  plaintiff's  is  not  material  to  show  that 
plaintiff's  meadow  was  not  injured  by  the  acts  of  defend- 
ants in  handling  the  waters  of  a  creek,  where  it  is .  not 
shown  that  the  conditions  at  the  two  ranches  were  the 
same.— Wallace  v.  Weaver,  47  Mont.  437,  133  P.  1099. 
Oklahoma.  Sales  of  good  hominy  to  other  persons  are 
inadmissible  to  show  the  quality  of  hominy  sold  to  plain- 
tiff.—T.  S.  Reed  Grocery  Co.  v.  Miller,  36  Okl.  134,  128 
P.  271. 

The  report  of  a  factory  inspector  as  to  another  machine 
of  different  style  and  make  from  that  at  which  deceased 
was  killed  is  inadmissible  to  show  the  condition  of  the 
latter. — Jones  v.  Oklahoma  Planing  Mill  &  Mfg.  Co.,  (Okl.), 
147  P.  999. 

South  Dakota.  What  other  artesian  wells  in  the  same 
neighborhood  might  flow,  where  there  is  no  showing  as  to 
the  character  of  the  water-bearing  rock,  would  have  no 
tendency  to  show  that  the  well  in  question,  with  a  scant 
flow,  was  defectively  constructed. — Norbeck  &  Nicholson 
Co.  v.  Mallock,  26  S.  D.  54,  127  N.  W.  471. 

Before  one  article  can  be  used  as  a  standard  from 
which  to  determine  the  capacity  of  a  second  article,  there 
should  be  proof  of  the  capacity  of  the  article  which  is 
used  as  the  standard. — Fairbanks,  Morse  &  Co.  v.  Heihn, 
29   S.  D.  215,   136  N.  W.  107. 

Texas.  When  it  is  sought  to  prove  what  was  made  on 
other   lands    in    order   to    determine    by    comparison    the 


SIMILAR  BUT   UNCONNECTED   FACTS  123 

character  of  crop  made  by  a  party,  such  Inquiry  should 
be  limited  to  crops  on  substantially  the  same  character 
of  lands  under  the  same  conditions  and  character  of  cul- 
tivation.— Erp  v.  Raywood  Canal  &  Milling  Co.,  (Tex.  Civ. 
App.),  130  S.  W.  897. 

The  question  being  whether  a  certain  traction  engine 
would  develop  a  certain  horse  power,  and  was  defective 
in  material  and  workmanship,  evidence  that  another  trac- 
tion engine,  operated  in  a  field  about  two  miles  distant 
would  pull  twelve  disc  plows,  while  the  one  in  contro- 
versy was  pulling  only  six,  is  inadmissible,  when  it  ap- 
pears that  the  other  engine  was  of  a  much  greater  horse 
power,  was  operated  by  another  person,  was  of  a  different 
make,  and  it  was  not  shown  that  the  soil  and  other  condi- 
tions were  similar. — Southern  Gas  &  Gasoline  Engine  Co. 
v.  Adams  &  Peters,  (Tex.  Civ.  App.),  169  S.  W.  1143. 
Washington.  In  an  action  for  the  death  of  a  horse  by 
alleged  excessive  driving,  in  a  double  team  with  a  heavy 
buggy  and  four  passengers,  evidence  as  to  the  time  con- 
sumed in  driving  the  same  distance  with  one  horse  in  a 
light  rig  is  inadmissible. — Welch  v.  Fransioli,  46  Wash. 
530,  90  P.  644. 

Other   Offenses. 

Proof  of  an  offense  dstinct  from  and  wholly  disconnected 
with  the  particular  crime  charged  is  inadmissible. — Peo- 
ple v.  Vidal,  121  Cal.  221,  53  P.  558;  People  v.  Hurley,  126 
Cal.  351,  58  P.  814;  People  v.  King,  23  Cal.  App.  259,  137 
P.  1076;  State  v.  Kirby,  62  Kan.  436,  63  P.  752;  Morgan  v. 
State,  56  Neb.  696,  77  N.  W.  64;  Tippens  v.  State,  (Tex. 
Cr.  R.),  43  S.  W.  1000;  Lucas  v.  State,  50  Tex.  Cr.  R.  219, 
95  S.  W.  1055;  Currington  v.  State,  72  Tex.  Cr.  R.  143,  161 
S.  W.  478;  State  v.  Shockley,  29  Utah  25,  80  P.  865;  State 
v.  Strodemier,  40  Wash.  608,  82  P.  915;  State  v.  Hazzard, 
75  Wash.  5,  134  P.  514. 

California.  Evidence  of  the  commission  of  a  different  of- 
fense cannot  be  admitted  in  proof  of  the  offense  for  which 
the  defendant  is  on  trial,  and  all  evidence  of  collateral 
facts  which  are  incapable  of  offering  a  reasonable  pre- 
sumption as  to  the  principal  fact  in  dispute  are  also  ex- 
cluded.—People  v.  Glass,  158  Cal.  650,  112  P.  287. 

Evidence  of  a  different  offense  may  not  be  given  against 
a  person  charged  with  a  particular  crime,  but  where  the 


124  SIMILAR  BUT  UNCONNECTED  FACTS 

facts  concerning  the  other  offense  tend  to  prove  the  de- 
fendant guilty  of  the  offense  for  which  he  is  being  tried 
the  rule  does  not  apply.  That  such  evidence  tends  to 
prove  defendant  guilty  of  another  crime  does  not  render 
it  irrelevant  if  relevant  to  the  charge  for  which  he  is  on 
trial.— People  v.  Glass,  158  Cal.  650,  112  P.  281. 
Nebraska.  On  a  charge  of  obtaining  goods  by  false  pre- 
tenses, similar  acts  in  two  other  cases  entirely  distinct  and 
separate,  are  irrelevant. — Cowan  v.  State,  22  Neb.  519,  35 
N.  W.  405. 

Oklahoma.  Charge  of  gaming.  Evidence  that  defendant 
maintained  a  gambling  house  and  place  where  intoxicating 
liquor  was  sold,  inadmissible. — Baldwin  v.  State,  11  Okl. 
Cr.  228,  144  P.  634. 

As  to  assaults  and  adultery,  not  connected  with  present 
charge  of  carrying  concealed  weapons,  evidence  is  inad- 
missible.—Appleby  v.  State,  11  Okl.  Cr.  284,  146  P.  228. 
Oregon.  Where  three  persons  were  killed  in  immediate 
succession  by  defendant  in  one  affair,  the  circumstances 
and  conditions  attending  the  death  of  any  one  or  more  of 
the  individuals  killed  constitute  a  part  of  the  res  gestae 
attending  the  death  of  any  other,  and  it  was  proper  to 
admit  on  the  trial  for  the  murder  of  one  the  clothing  of 
the  others,  for  the  purpose  of  locating  and  determining 
the  direction  of  the  gunshot  wounds  upon  their  persons, 
and  thereby  fixing  if  possible  the  direction  from  which 
the  accused  was  firing  when  the  other  was  killed. — State 
v.  Porter,  32  Or.  135,  49  P.  964. 

Texas.  Prosecution  for  forged  utterance.  That  defend- 
ant had  embezzled  other  funds  of  employer,  inadmissible. 
—Strang  v.  State,  32  Tex.  Cr.  R.  219,  22  S.  W.  680. 

The  fact  that  defendant  burglarized  the  store  of  wit- 
ness on  one  night  does  not  tend  to  prove  that  he  bur- 
glarized another  store  of  witness  in  another  town  on  the 
next  night.— McAnally  v.  State,  (Tex.  Cr.  R.),  73  S.  W. 
404. 

Whether  defendant  had  been  arrested  for  swindling  and 
was  under  bond  to  answer  such  charge  is  immaterial  in 
an  action  for  deceit. — Witliff  v.  Spreen,  51  Tex.  Civ.  App. 
544,  112  S.  W.  98. 

Proof  of  extraneous  crimes  which  does  not  go  to  show 
intent,  identity  or  system,  or  which  is  not  part  of  the 


SIMILAR  BUT  UNCONNECTED  FACTS  125 

res  gestae,  is  not  admissible,  if  it  could  only  show  that 
the  defendant  was  a  criminal  generally. — Bowman  v. 
State,  70  Tex.  Cr.  R.  22,  155  S.  W.  930. 

Where  defendant,  arrested  for  burglary  of  a  box  car, 
claimed  that  a  pair  of  pants  found  at  his  house  had  been 
bought  by  him,  evidence  that  they  were  obtained  by  the 
burglary  of  another  car  on  a  different  occasion  is  admis- 
sible.— Nowlin  v.  State,  (Tex.  Cr.  R.),  175  S.  W.  1070. 
Washington.  It  is  not  competent  to  show  the  commission 
of  another  distinct  crime  by  defendant,  for  the  purpose 
of  proving  that  he  is  guilty  of  the  crime  charged. — State 
v.  Craddick,  61  Wash.  425,  112  P.  491. 

Other  Offenses   (Showing   Motive  or  Preparation). 

Where  proof  of  another  offense  shows  motive  or  prepa- 
ration for  the  offense  in  question,  evidence  as  to  such  of- 
fense is  admissible.— Howard  v.  State,  72  Ark.  586,  82  S. 
W.  196;  People  v.  Ebanks,  117  Cal.  652,  49  P.  1049;  Peo- 
ple v.  Wood,  145  Cal.  659,  79  P.  367;  State  v.  Lancaster, 
10  Ida.  410,  78  P.  1081;  State  v.  Franklin,  60  Kan.  798,  77 
P.  588;  Harmon  v.  Territory,  15  Okl.  147,  79  P.  765;  State 
v.  Robinson,  32  Or.  43,  48  P.  357;  State  v.  Stevens,  16  S. 
D.  309,  92  N.  W.  420;  West  v.  State,  44  Tex.  Cr.  R.  417, 
71  S.  W.  967. 

Arkansas.     In  a   prosecution   for   murder   committed   dur- 
ing a  robbery,  the   fact  of  a  general  plan  to  rob  others 
was  admissible. — Ford  v.   State,  34  Ark.   649. 
Other  Offenses  (Showing  Commission  of  Offense  Charged). 

Evidence  of  other  offenses  is  admissible  when  it  tends 
to  prove  the  commission  of  the  offense  charged,  or  is  con- 
nected with  it  as  part  of  the  same  transaction: 
Arkansas:     Davis  v.  State,    (Ark.),  174  S.  W.   567    (other 
burglaries  the  same  night  admitted). 

California:  People  v.  McGilver,  67  Cal.  55,  7  P.  49  (ar- 
rest of  accused  while  breaking  into  another  store,  and  that 
burglar's  tools  were  found  on  him) ;  People  v.  Smith,  106 
Cal.  73,  39  P.  40  (murder  of  another  person  at  the  same 
time  as  deceased) ;  People  v.  Rial,  23  Cal.  App.  713,  139 
P.  661  (same  schemes  of  obtaining  money  for  fake  bet- 
ting on  horse  races). 

Oklahoma:  Cross  v.  State,  11  Okl.  Cr.  117,  143  P.  202  (lar- 
ceny of  horses;  fact  that  accused  stole  them  to  enable  him 
to  depart  from  the  country  with  a  woman  other  than  his 


126  SIMILAR  BUT   UNCONNECTED  FACTS 

wife);  State  v.  Rule,  11  Okl.  Cr.  117,  144  P.  807  (filing 
other  false  claims  with  intent  to  defraud  the  state). 
Texas:  Hewitt  v.  State,  (Tex.  Cr.  R.  ),  167  S.  W.  40  (in- 
ducing girl  to  leave  the  state  for  purposes  of  prostitution; 
fact  that  accused  obtained  money  from  her  father  to  hunt 
for  her,  when  he  knew  where  she  was,  admitted) ;  Gray  v. 
State,  (Tex.  Cr.  R.),  178  S.  W.  337  (abortions  on  other 
women,   to  disprove  innocence). 

Arizona.  Extortion  by  threatening  to  accuse  another  of 
larceny  of  cow.  Fact  that  defendant  stole  the  cow  and 
compelled  prosecuting  witness  at  the  point  of  a  gun  to 
kill  it  admissible  as  all  involved  in  one  transaction. — 
Lee  v.  State,  16  Ariz.  291,  145  P.  244. 

Arkansas.  In  a  prosecution  for  larceny  of  a  steer,  evi- 
dence to  show  intent  is  admissible,  that  defendant  killed 
and  butchered  a  hog  of  another  at  about  the  same  time 
and  near  the  same  place  as  the  steer  was,  and  that  both 
animals  were  loaded  into  the  same  wagon  and  taken  away 
for  sale.— Autrey  v.  State,  113  Ark.  347,  168  S.  W.  556. 

On  a  trial  for  burglary,  evidence  of  acts  of  defendants 
during  the  same  night  and  of  nitroglycerine,  skeleton  keys 
and  other  implements  admitted,  as  tending  to  establish 
their  occupation  and  purpose. — Davis  v.  State,  (Ark.),  174 
S.  W.  567. 

Idaho.  Evidence  of  the  common  purpose  to  commit  like 
crimes  on  other  girls  and  the  commission  of  such  offenses 
by  the  defendant  held  admissible  under  the  circumtsances 
of  this  case,  as  incidents  in  the  commission  of  the  common 
criminal  design. — State  v.  Hammock,  18  Idaho  424,  110 
P.  169. 

New  Mexico.  Larceny  of  other  cattle  composing  a  herd 
which  accused  drove  into  town  for  sale,  admitted. — State 
v.  Graves,  21  N.  M.  556,  157  P.  160;  State  v.  Pino,  21  N.  M. 
660,  158  P.  131. 

Texas.  That  other  hides  than  those  of  the  animals  al- 
leged to  have  been  stolen  were  found  buried  in  accused's 
field  is  admissible. — Watters  v.  State,  (Tex.  Cr.  R.),  94  S. 
W.  1038. 

Washington.  Evidence  relevant  to  the  crime  charged  is 
not  inadmissible  because  it  may  tend  to  show  the  com- 
mission of  another  and  independent  crime.  (Evidence  of 
the  property  taken  from  H.  admissible  in  prosecution  for 


SIMILAR  BUT   UNCONNECTED  FACTS  127 

robbing  S.,  where  both  were  robbed  at  the  same  time.) — 
State  v.  Conroy,  82  Wash.  417,  144  P.  538. 

Other  Accidents. 
Colorado.     That  other  persons  had   tripped  on  a  certain 
pipe  inadmissible   to   show  negligence. — Diamond   Rubber 
Co.  v.  Harryman,  41  Colo.  415,  92  P.  922. 

Evidence  to  show  that  other  accidents  had  occurred 
from  defective  sidewalks,  inadmissible,  unless  occurring 
under  substantially  the  same  conditions  as  to  persons 
and  walk. — Griffith  v.  City  &  County  of  Denver,  55  Colo. 
37,  132  P.  57. 

Kansas.  In  an  action  against  a  city  to  recover  damages 
for  injuries  received  from  a  fall  on  a  defective  sidewalk, 
it  is  competent  for  the  plaintiff  to  show  that,  while  the 
walk  was  in  the  same  condition,  similar  accidents  had  oc- 
curred at  the  same  place. — City  of  Topeka  v.  Sherwood, 
39  Kan.  690,  18  P.  933. 

Action  for  injury  from  negligence.  Evidence  that  others 
had  been  injured  in  same  manner,  relevant. — Missouri 
Pac.  Ry.  Co.  v.  Neiswanger,  41  Kan.  621,  21  P.  584. 
Montana.  Evidence  that  other  persons  had  tripped  over 
an  irregularity  in  the  sidewalk  is  relevant,  both  as  show- 
ing dangerous  character  and  bearing  on  question  of 
notice.— Pullen  v.  City  of  Butte,  45  Mont.  46,  121  P.  878. 
Oregon.  Other  accidents  inadmissible  unless  closely  con- 
nected with  the  accident  complained  of.— Galvin  v.  Brown 
&   McCabe.   53   Or.   598,   101   P.   671. 

Texas.  Evidence  as  to  the  overflow  of  other  lands  not 
shown  to  be  similarly  located  nor  of  the  same  topography 
as  those  overflowed  by  defendant's  embankment,  is  in- 
admissible.—Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Caldwell,  (Tex. 
Civ.  App.),  102  S.  W.  461. 

Utah.  Other  rock  falling  from  roof  of  tunnel  at  different 
times  admissible  to  show  character  of  ground  and  notice 
to  defendant.— Sargent  v.  Union  Fuel  Co.,  37  Utah  392,  108 
P.  928. 

Washington.  Evidence  that  the  steer  running  at  large 
which  injured  plaintiff  remained  in  neighborhood  for  about 
ten  days  thereafter  and  attacked  other  persons,  and  was 
a  "range  steer,"  which  steers  are  generally  wild  and  vic- 
ious, is  relevant.— Harris  v.  Carstens  Packing  Co.,  43 
Wash.  647,  86  P.  1125,  6  L.  R.  A.    (N.  S.),   1164. 


128  SIMILAR  BUT  UNCONNECTED  FACTS 

Other  Fires. 

Evidence  that  engines  of  defendant  had  set  fires,  or  had 
dropped  or  emitted  fire,  at  other  times  before  or  after  the 
occurrence  of  the  fire  in  question,  is  relevant; 
California:     Steele  v.  Pacific  Coast  Ry.  Co.,  74  Cal.  373, 
15  P.  851. 

Kansas:  Barker  v.  Missouri  Pac.  R.  Co.,  89  Kan.  573, 
132   P.   156. 

Oklahoma:  St.  Louis  &  S.  F.  R.  Co.  v.  Shannon,  25  Okl. 
754,  108  P.  401  (engines  practically  identical  in  construc- 
tion); Missouri,  O.  &  G.  Ry.  Co.  v.  Gentry,  31  Okl.  579, 
122  P.   537    (same). 

Texas:  Freeman  v.  Nathan,  (Tex.  Civ.  App.),  149  S.  W. 
248  (other  engines  emitting  sparks). 

Proof  of  other  fires  set  by  other  engines  of  defendant 
is  inadmissible,  where  the  engine  that  set  the  fire  is 
fully  identified.— Bradley  v.  Chicago,  B.  &  Q.  R.  Co., 
90  Neb.  28,  132  N.  W.  725;  Mussbaum  &  Scharff  v.  Trinity 
&  Brazos  Valley  Ry.  Co.,  (Tex.  Civ.  App.),  149  S.  W.  1083. 
Arkansas.  The  fact  that  other  fires  had  been  caused  by 
ignition  from  a  pile  of  burning  refuse  of  defendant  is  ad- 
missible.— Chicago  Mill  &  Lumber  Co.  v.  Ross,  99  Ark. 
139,   139   S.   W.   632. 

Idaho.  Fact  of  other  fires  admissible,  where  the  engines 
were  in  as  good  condition  as  the  one  charged  with  set- 
ting the  fire. — Osburn  v.  Oregon  R.  &  Nav.  Co.,  15  Ida. 
478,  98  P.  627. 

Kansas.  Proof  that  other  engines  of  the  same  company 
passed  over  the  same  road  at  the  same  place  all  the  sea- 
son without  causing  any  fires  at  or  near  the  place  where 
an  engine  caused  fires  by  the  emission  of  sparks,  under 
the  same  conditions  of  wind,  weather,  etc.,  is  some  proof 
of  negligence  on  the  part  of  the  railroad  company  with 
regard  to  the  particular  engine  which  caused  the  fires. — 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Stanford,  12  Kan.  354. 

In  an  action  against  a  railway  company  for  damages  by 
fire  alleged  to  have  been  caused  by  the  operation  of  the 
road,  proof  of  other  fires  along  the  right  of  way  occur- 
ring at  or  near  the  same  time  under  similar  conditions  is 
competent  as  a  circumstance  tending  to  show,  not  only 
that  the  railway  company  was  negligent  in  the  operation 
of  its  road,  but  also  as  tending  to  show  that  the  fire  com- 


SIMILAR  BUT  UNCONNECTED  PACTS  129 

plained  of  was  caused  in  the  manner  alleged. — Tuttle  v. 
Missouri  Pac.  Ry.  Co.,  86  Kan.  28,  119  P.  370. 
Nevada.  Evidence  of  other  fires  occurring  in  the  vicinity 
within  a  few  weeks  previous  to  the  burning  charged,  and 
at  nearly  the  same  hour  of  the  evening,  is  admissible  as 
showing  that  the  fire  charged  was  of  incendiary  origin. — 
State  v.  McMahon,  17  Nev.  365,  30  P.  1000. 
Texas.  Proof  that  a  witness  had  seen  fires  at  other  times 
near  the  train  whose  engine  was  alleged  to  have  caused 
the  fire  is  inadmissible. — D.  H.  Fleming  &  Son  v.  Pullem 
(Tex.  Civ.  App.),   97  S.  W.  109. 

Showing  Negligence. 

The  fact  that  a  person  to  whom  negligence  is  imputed 
has  been  guilty  of  negligent  acts  on  a  similar  or  other 
occasion  is  irrelevant: 

Arkansas:  Little  R.  &  M.  R.  Co.  v.  Harrell,  58  Ark.  454, 
24  S.  W.  883  (prior  negligent  acts  of  defendant's  em- 
ployee). 

Idaho:  Rumpel  v.  Oregon  Short  Line  &  U.  N.  Ry.  Co.,  4 
Ida.  13,  35  P.  700  (railroad  blockading  streets  at  other 
times) ;  Denbeigh  v.  Oregon-Washington  R.  &  Nav.  Co., 
23  Ida.  663,  132  P.  112  (negligence  on  similar  occasions). 
Montana:  Mulville  v.  Pacific  Mut.  Life  Ins.  Co.,  19  Mont. 
95,  47  P.  651  (practice  of  deceased  in  jumping  off  trains). 
Texas:  Missouri,  K.  &  T.  R.  Co.  v.  Johnson,  92  Tex.  380, 
48  S.  W.  568  (that  engineer  slept  at  post  and  had  fre- 
quently ran  by  stations) ;  Sabine  Valley  Telephone  Co.  v. 
Oliver,  46  Tex.  Civ.  App.  428,  102  S.  W.  925  (failure  to  de- 
liver message;    other  negligent  acts  admissible). 

Similar  acts  of  negligence,  or  habitual  negligence  not 
admissible  to  show  contributory  negligence  of  servant. — 
Southern  Kans.  R.  Co.  v.  Robbins,  43  Kan.  145,  23  P.  113; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Johnson,  92  Tex.  382,  48  S. 
W.  568;  Id.  v.  Parrott,  43  Tex.  Civ.  App.  325,  96  S.  W. 
950. 

Arkansas.  Evidence  of  methods  of  construction  of  tres- 
tles by  other  railroad  companies,  inadmissible  to  disprove 
negligence  in  construction  of  the  one  by  the  breaking  of 
which  an  employee  was  killed. — Jonesboro,  L.  C.  &  E. 
R.  Co.  v.  Minson,  102  Ark.  581,  145  S.  W.  215. 
California.  The  question  being  whether  plaintiff  careless- 
ly  jumped   from   train    while   in    motion,    defendant    may 


130  SIMILAR  BUT   UNCONNECTED   FACTS 

show  that  plaintiff  had  frequently  done  the  same  thing 
and  had  been  warned  of  danger. — Craven  v.  Central  Pac. 
R.  Co.,  72  Cal.  345,  13  P.  878. 

Plaintiff  injured  by  alleged  faulty  breaking  of  shears 
for  cutting  iron  may  show  that  other  shears  had  broken, 
but  not  that  such  breaking  was  caused  by  faulty  construc- 
tion.—Pacheco  v.  Judson  Mfg.  Co.,  113  Cal.  541,  45  P.  833. 
Kansas.  Evidence  of  the  practice  and  usage  of  others  in 
climbing  the  ladder  of  a  box  car  when  a  train  is  in 
motion,  such  as  deceased  fell  from,  is  not  admissible  to 
prove  due  care  on  his  part  at  the  time  of  the  accident. — 
Southern  Kan.  R.  Co.  v.  Robbins,  43  Kan.  145,  23  P.  113. 
Texas.  When  the  question  is  as  to  whether  or  not  a  person 
has  been  negligent  in  .doing  or  in  failing  to  do  a  partic- 
ular act,  evidence  is  not  admissible  to  show  that  he  has 
been  guilty  of  a  similar  act  of  negligence,  or  even  habit- 
ually negligent  upon  a  similar  occasion.  (Habitual  vio- 
lation of  railway  company's  rules,  inadmissible.) — Mis- 
souri, K.  &  T.  Ry.  Co.  v.  Parrott,  43  Tex.  Civ.  App.  325, 
96  S.  W.  950. 

Other  acts  of  alleged  negligence  of  a  telephone  com- 
pany are  immaterial  in  an  action  for  failure  to  deliver 
a  call  to  plaintiff. — Sabine  Valley  Telephone  Co.  v.  Oliver, 
46  Tex.   Civ.  App.   428,   102   S.  W.  925. 

Washington.  The  fact  that  defendant  was  reputed  to  be 
a  man  of  sobriety  was  not  admissible  to  disprove  his  in- 
toxication in  a  specific  instance. — Carter  v.  Seattle,  19 
Wash.  597,  53  P.  1102. 

Evidence  of  prior  negligent  acts  of  the  principal  him- 
self are  admissible  on  the  issue  of  want  of  ordinary  care. 
(Employee  suing  for  injuries  sustained  by  rock  torn  loose 
by  explosion.) — Allard  v.  Northwestern  Contract  Co.,  64 
Wash.  14,  116  P.  457. 

SHOWING   VALUE. 

The  value  of  land  cannot  be  shown  by  proof  of  inde- 
pendent sales: 

Kansas:     Kansas  City  O.,  L.  &  T.  Ry.  Co.  v.  Weidenmann, 
77  Kan.  300,  94  P.  146  (specific  or  exceptional  sale). 
Nebraska:     Union  Pac.  R.  Co.  v.   Stanwood,  71  Neb.  150, 

98  N.  W.   656    (independent  sales). 

Oregon:     Willamet  Falls  Canal  &  Lock  Co.  v.  Kelly,  3  Or. 

99  (sheriff's  sale);   Oregon  R.  &  Nav.  Co.  v.  Eastlack,  54 


SIMILAR  BUT   UNCONNECTED   FACTS  131 

Or.  196,  102  P.  1011  (price  paid  by  plaintiff  in  condemna- 
tions proceedings  for  other  property). 
Contra:  Loloff  v.  Sterling,  31  Colo.  102,  71  P.  1113. 
Arkansas.  A  tax  assessment  book  is  admissible  to  show 
the  value  of  personal  property,  and  entitled  to  such  credit 
as  the  jury  gives  it. — White  v.  Beal  &  Fletcher  Grocer 
Co.,  65  Ark.  278,  45  S.  W.  1060. 

The  original  cost  of  a  building  is  not  evidence  of  its 
value  at  a  subsequent  time. — Garland  County  v.  Hot  Spring 
County,  68  Ark.  83,  56  S.  W.  636. 

California.  Where  farm  implements  have  been  used,  the 
cost  of  replacing  them  with  new  implements  furnishes  no 
measure  of  their  value. — Slade's  Estate,  In  re,  122  Cal. 
434,   55  P.   158. 

Testimony  of  neighboring  farmers  growing  sweet  pota- 
toes on  land  similarly  situated  and  of  same  soil  and  con- 
ditions as  plaintiff's  before  its  overflowing,  as  to  number 
of  sacks  grown  the  same  year,  admissible. — Dennis  v. 
Crocker-Huffman  Land  &  Water  Co.,  6  Cal.  App.  58,  91 
P.  425. 

Price  paid  is  incompetent  to  show  market  value. — 
Mattern  v.  Alderson,   18  Cal.  App.   590,   123  P.   972. 

In  determining  the  value  of  a  newspaper  route,  the  net 
sum  earned  therefrom  with  approximate  uniformity  and 
the  sum  actually  paid  therefor  are  relevant  in  determin- 
ing its  value. — Otten  v.  Spreckels,  24  Cal.  App.  251,  141 
P.   224.   228. 

Colorado.  Records  of  the  office  of  the  county  treasurer 
of  a  county  in  which  property  is  located,  showing  the 
value  at  which  the  property  was  assessed  to  plaintiff, 
are  inadmissible  in  an  action  for  conversion  of  the  prop- 
erty.—Carper  v.  Risdon,  19  Colo.  App.  530,  76  P.  744. 

Assessment  roll  inadmissible  to  prove  value. — Ft.  Collins 
Devel.  Ry.  Co.  v.  France,  41  Colo.  512,  92  P.  953;  Hil 
dreth  v.  City  of  Longmont,  47  Colo.  79,  105  P.  107. 

Assessor's  testimony  as  to  value  for  taxation  inadmis- 
sible.—Denver  &  Rio  G.  R.  Co.  v.  Heckman,  45  Colo.  470, 
101   P.   976. 

Kansas.     The  amount  of  damages  to  a  growing  crop  can 
not  be  estimated  by  the  value  of  the  crop  when  gathered 
in  the  fall.— Hays  v.  Crist,  4  Kan.  350. 
Montana.     Offers  for  similar  lands  in  the  locality  irrele- 


132  SIMILAR   BUT  UNCONNECTED  FACTS 

vant  on  the  question  of  value. — Yellowstone  Park  R.  Co. 
v.  Bridger  Coal  Co.,  34  Mont.  545,  87  P.  963. 

Amount  paid  for  property  subsequently  is  inadmissible. 
— Myers  v.  Bender,  46  Mont.  497,  129  P.  330. 
Nebraska.  In  a  suit  for  the  reasonable  value  of  plumb- 
ing material,  the  price  which  other  plumbers  at  such 
place  and  time  charged  for  such  material,  irrelevant. — 
Thompson  v.  Gaffey,  52  Neb.  317,  72  N.  W.  314. 

In  proving  value  of  land  at  a  particular  time,  a  witness 
cannot  show  what  he  was  authorized  to  bid  for  the  land 
at  that  time,  though  authorized  to  bid  for  a  party  finan- 
cially responsible.— First  Nat.  Bank  v.  HacKett,  2  Neb. 
(Unof.)  512,  89  N.  W.  412. 

The  amount  of  rent  fixed  in  a  lease  of  premises  two 
years  before  is  inadmissible  to  prove  the  rental  value. — 
Raapke  &  Katz  Co.  v.  Schmoeller  &  Mueller  Piano  Co., 
82  Neb.  716,   118  N.  W.   652. 

Nevada.  The  value  of  stock  in  a  ditch  company  cannot 
be  shown  by  its  value  in  connection  with  a  certain  ranch. 
— Bowker  v.  Goodwin,  7  Nev.  135. 

New  Mexico.  Testimony  as  to  cost  admissible. — Melini 
v.  Freige,  15  N.  M.  455,  110  P.  503. 

Oklahoma.  Evidence  of  what  others  received  for  the 
same  services  in  the  same  locality  is  evidence  of  the  rea- 
sonable value  of  plaintiff's  services. — Anthony  v.  Nourse, 
34   Okl.  795,   127  P.  491. 

Oregon.  What  property  was  sold  for  twelve  or  fifteen 
years  before  is  inadmissible. — Oregon  R.  &  Nav.  Co.  v. 
Eastlack,  54  Or.  196,  102  P.  1011. 

The  taking  of  an  option  to  purchase  property  at  a  speci- 
fied price  is  not  evidence  of  the  real  or  market  value  of 
such  property.— Shebley  v.  Quatman,  66  Or.  441,  134  P.  68. 

Price  paid  over  two  years  before  inadmissible. — City  of 
Portland  v.  Tigard,  64  Or.  404,  129  P.  755. 
South  Dakota.  The  value  of  a  piano  is  not  to  be  esti- 
mated by  the  price  at  which  a  piano  of  the  same  kind  and 
make  was  offered  some  two  years  before. — Bailey  v. 
Walton,  24  S.  D.  118,  123  N.  W.  701. 

Evidence  of  the  market  price  of  wheat  in  another  town 
thirteen  miles  distant  on  the  same  line  of  railway  is  com- 
petent where  it  is  shown  that  the  market  price  was  prac- 


SIMILAR  BUT   UNCONNECTED   FACTS  133 

tically  the  same  at  both  stations. — Catlett  v.  Stokes, 
33  S.  D.  278,  145  N.  W.  554. 

Selling  price  of  apples  in  their  injured  condition,  admis- 
sible.—Dunlap  v.  Great  Northern  Ry.  Co.,  34  S.  D.  320, 
148  N.  W.  529. 

Texas.  The  question  being  the  value  of  grass  destroyed, 
the  rental  per  annum  paid  for  the  grass  land  is  inadmis- 
sible.— International  &  G.  N.  Ry.  Co.  v.  Searight,  8  Tex. 
Civ.  App.  593,  28  S.  W.  39. 

Where  the  earning  capacity  of  one  injured  is  in  issue, 
testimony  as  to  what  he  received  for  his  labor  at  different 
times  and  places,  and  from  different  employers,  is  ad- 
missible.— San  Antonio  Foundry  Co.  v.  Drish,  38  Tex.  Civ. 
App.  214,  85  S.  W.  440. 

In  a  suit  by  a  broker  to  recover  commissions  on  the 
sale  of  stock,  what  the  buyer  paid  for  other  shares  of  the 
same  stock  after  such  sale  is  inadmissible. — Ross  v.  Mos- 
kowitz-,  100  Tex.  434,  95  S.  W.  86. 

Price  paid  inadmissible. — Texarkana  &  Ft.  S.  Ry.  Co. 
v.  Neches  Iron  Works,  57  Tex.  Civ.  App.  249,  122  S.  W.  64. 
Value  of  land  is  not  to  be  measured  by  the  value  of 
land  about  twenty  miles  away,  not  shown  to  be  substan- 
tially identical  in  class,  conditions  and  surroundings. — 
Koppe  v.  Koppe,  57  Tex.  Civ.  App.  204,  122  S.  W.  68. 

In  an  action  for  loss  of  crops,  evidence  of  the  amount 
and  value  of  crops  raised  on  similar  land  thirty  miles 
away  is  admissible. — Erie  City  Iron  Works  v.  Noble,  (Tex. 
Civ.  App.),   124   S.  W.   172. 

Amount  handed  in  as  value  for  taxation  inadmissible. 
—Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Koch,  (Tex.  Civ.  App.),  144 
S.  W.  1035. 

Price  at  sheriff's  sale  inadmissible. — Edwards  v.  Mayes, 
(Tex.  Civ.  App.).  136  S.  W.  510. 

Price  paid  is  no  evidence  of  market  value. — Wichita 
Falls  &  W.  Ry.  Co.  of  Texas  v.  Wyrick,  (Tex.  Civ.  App.), 
147  S.  W.  730;  St.  Louis  &  S.  F.  R.  Co.  v.  Blocker,  (Tex. 
Civ.  App.),  138   S.  W.  156. 

Washington.  In  a  suit  by  a  fisherman  for  failure  to  fur- 
nish return  transportation  from  Alaska  whereby  he  was 
prevented  from  engaging  in  the  business  of  fishing  in 
Puget  Sound  during  the  month  of.  September,  evidence 
tending  to  show  the  average  earnings  of  fishermen  there 


134  SIMILAR  BUT   UNCONNECTED   FACTS 

engaged  during  that  month  is  admissible. — Johnson  v. 
San  Juan  Fish  &  Packing  Co.,   31  Wash.   238,   71  P.   787. 

In  case  of  dispute  as  to  contract  price  evidence  of  value 
is  admissible. — Peyser  v.  Western  Dry  Goods  Co.,  53  Wash. 
633,   102   P.   750. 

Evidence  of  price  paid  not  very  recently  inadmissible. 
— Grays  Harbor  Boom  Co.  v.  Lownsdale,  54  Wash.  83,  102 
P.  1041. 

Price  paid  is  no  evidence  of  value.— Abrahamson  v. 
Cummings,  65  Wash.  35.  117  P.  709. 

Similar  or  Dissimilar  Effects  On  Other  Persons  or  Things. 
California.  In  an  action  for  injuries  received  while  rid- 
ing on  defendant's  car  which  was  overturned,  evidence  of 
the  action  of  other  passengers  as  to  means  taken  to  pre- 
vent injury  relevant. — Mitchell  v.  Southern  Pac.  R.  Co., 
87  Cal.  62,  25  P.  246. 

To  rebut  claim  of  contributory  negligence  in  jumping 
from  car,  evidence  that  others  who  remained  on  car  were 
injured  relevant. — Fogel  v.  San  Francisco  &  S.  M.  Ry.  Co., 
(Cal.),  42  P.  565. 

Where  the  extent  of  plaintiff's  injuries  by  an  explosion 
of  powder  was  in  issue,  he  may  show  that  the  explosion 
resulted  in  the  death  of  two  bystanders  occupying  a  posi- 
tion near  him.— Rathbun  v.  White,  157  Cal.  248,  107  P. 
309. 

Colorado.  Fact  that  similar  accident  had  never  happened 
before  immaterial,  and  has  no  tendency  to  show  absence 
of  negligence. — Denver  City  Tramway  Co.  v.  Hills,  50 
Colo.  328,  116  P.  125. 

Nebraska.  The  plaintiff  having  introduced  evidence  that 
other  wells  in  the  neighborhood  of  the  source  of  pollution 
complained  of  were  likewise  affected,  held  that  evidence 
on  behalf  of  the  defendant  to  show  that  other  wells  sit- 
uated at  a  great  distance  from  such  source  were  also  like- 
wise affected,  was  admissible,  as  tending  to  show  that 
the  pollution  of  wells  was  general,  affecting  the  whole 
region  and  not  caused  by  defendant's  plant. — Beatrice 
Gas  Co.  v.  Thomas,  41  Neb.  662,  59  N.  W.  925. 
Texas.  In  an  action  by  an  employee  for  injuries  sus- 
tained by  the  breaking  of  a  ladder  while  he  was  descend- 
ing into  a  tank  car,  testimony  of  another  employee  that 
no   ladder  had    ever   broken   with   him   in   a    tank   car   is 


SIMILAR  BUT   UNCONNECTED  FACTS  135 

inadmissible.— Adams  v.  Gulf,  C.  &  S.  Ry.  Co.,  (Tex.  Civ. 
App.),  105  S.  W.  526. 

That  no  one  had  ever  been  before  injured  by  a  flying 
staple,  inadmissible.— Bering  Mfg.  Co.  v.  Peterson,  28  Tex. 
Civ.  App.   194,   67   S.  W.   133. 

Custom,  Habit  or  Course  of  Business. 
Texas.  Evidence  of  defendant's  dealings  with  other  real 
estate  agents  and  the  price  at  which  he  listed  land  to  them 
is  inadmissible  to  show  the  nature  of  the  listing  of  the 
property  to  plaintiffs.— J.  B.  Lloyd  &  Son  v.  Kerley,  (Tex. 
Civ.  App.),  106  S.  W.  696. 

Washington.  In  an  action  for  damages  from  the  bite  of 
a  ferocious  dog,  evidence  descriptive  of  previous  actions 
of  the  dog  are  relevant. — Robinson  v.  Marino,  3  Wash. 
434,  28  P.  752. 

Action  for  injuries  received  by  employee  while  riding  on 
pass;  whether  pass  was  gratuity  or  part  wages.  Evidence 
of  custom  to  furnish  other  like  employees  with  transpor- 
tation and  that  manager  stated  it  was  part  of  his  wages 
relevant. — Harris  v.  Puget  Sound  Elec.  Ry.,  52  Wash.  289, 
100    p.    838. 

Neighboring  Conditions. 
Oregon.  Action  for  injuries  caused  by  the  giving  way  of 
a  railroad  bridge.  Evidence  of  the  bad  condition  of  other 
portions  of  the  same  bridge  is  relevant  to  show  that  the 
claim  of  defendant  that  the  portion  which  gave  way  was 
well  constructed  was  not  well  founded. — Leonard  v. 
Southern  Pac.  R.  Co.,  21  Or.  555,  28  P.  887. 
Washington.  Intoxicated  passenger  injured  while  alight- 
ing from  car.  and  prevented  by  employees  of  carrier  from 
alighting  at  another  place.  Condition  of  street  at  such 
other  place  held  inadmissible. — Sullivan  v.  Seattle  Elec. 
Co.,  51  Wash.  71,  97  P.  1109. 

Experiments. 
California.  Experiments  by  jurors  in  a  murder  case,  to 
see  at  what  distance  powder  marks  would  be  carried  by 
liiing  from  ;i  gun  similar  to  that  carried  by  defendant, 
necessitate  a  reversal,  when  such  distance  was  an  im- 
portant issue  in  the  case. — People  v.  Conkling,  111  Cal. 
616,  44  P.  314. 

Colorado.     On  an  issue  as  to  whether  certain  cement  sold 
was  of  good  quality,  evidence  of  tests  made  with  cement 


136  SIMILAR  BUT  UNCONNECTED  PACTS 

out  of  the  same  stock  was  admissible. — Hindry  v.  McPhee, 
11  Colo.  App.  398,  53  P.  389. 

Kansas.  Tests  made  to  ascertain  whether  the  noise  of 
trains  coming  toward  a  cut  would  be  deadened  by  the  cut 
and  the  surroundings,  to  a  man  on  the  highway,  admissible. 
—Johnson  v.  Chicago,  R.  I.  &  P.  R.  Co.,  80  Kan.  456,  103 
P.  90. 

Evidence  of  experiments  offered  as  illustration  of  a 
fact  in  issue,  which  experiments  are  taken  under  widely 
differing  conditions  from  the  facts  sought  to  be  illus- 
trated, are  not  admissible. — Wingfield  v.  McClintock,  85 
Kan.  207,  113  P.  394. 

Oregon.  Experiments  may  be  performed  before  the  jury 
to  illustrate  the  cause  of  an  accident,  if  conditions  are  the 
same.— Leonard  v.  Southern  Pac.  Co.,  21  Or.  555,  28  P.  887. 
Texas.  Evidence  as  to  tests  cannot  be  introduced  in 
the  absence  of  proof  that  the  conditions  were  similar. — 
Missouri,  K.  &  T.  Ry.  Co.  v.  Dunbar,  49  Tex.  Civ.  App. 
12,   108   S.  W.   500. 

Utah.  Testimony  as  to  the  distance  children  could  be 
seen  on  a  railroad  bridge  is  admissible  when  given  by 
those  who  have  made  the  experiment. — Young  v.  Clark, 
16  Utah  42,  50  P.  832. 

Washington.  Experiments  made  out  of  court  are  compe- 
tent evidence  in  a  proper  case,  but  they  must  be  made 
under  substantially  the  same  conditions  as  existed  at  the 
time  of  the  transaction  in  question. — Lasityr  v.  City  of 
Olympia,  61  Wash.   651,  112  P.  752. 

Where  plaintiff  was  injured  by  the  explosion  of  a  blast- 
ing powder  furnished  him  by  his  employer  without  warn- 
ing him  of  its  highly  explosive  and  dangerous  character, 
testimony  of  experiments  upon  a  quite  different  powder 
was  inadmissible. — Nelson  v.  Sibley  Contracting  Co.,  66 
Wash.  471,  119  P.  829. 

In  an  action  for  the  death  of  a  man  run  over  by  a  car 
after  he  had  fallen  in  a  fit  or  intoxicated,  it  was  error  to 
reject  evidence  of  an  experiment  made  under  substan- 
tially similar  conditions,  with  a  dummy  placed  near  the 
track,  for  the  purpose  of  ascertaining  the  greatest  dis- 
tance at  which  such  object  could  have  been  seen  by  the 
motorman  of  the  approaching  car. — Amsbary  v.  Gray's 
Harbor  Ry.  &  Light  Co.,  78  Wash.  379,  139  P.  46. 


ACTS   SHOWING   INTENTION  137 

Article  11.* 
acts   showing   intention,  good  faith,   etc. 

When  there  is  a  question  whether  a  person  said 
or  did  something,  the  fact  that  he  said  or  did 
something  of  the  same  sort  on  a  different  occa- 
sion may  be  proved  if  it  shows  the  existence  on 
the  occasion  in  question  of  any  intention,  knowl- 
edge, good  or  bad  faith,  malice,  or  other  state  of 
mind,  or  of  any  state  of  body  or  bodily  feeling, 
the  existence  of  which  is  in  issue  or  is  or  is 
deemed  to  be  relevant  to  the  issue;  but  such  acts 
or  words  may  not  be  proved  merely  in  order  to 
show  that  the  person  so  acting  or  speaking  was 
likely  on  the  occasion  in  question  to  act  in  a  simi- 
lar manner. 

Where  proceedings  are  taken  against  any  per- 
son for  having  received  goods,  knowing  them  to 
be  stolen,  or  for  having  in  his  possession  stolen 
property,  the  fact  that  there  was  found  in  the 
possession  of  such  person  other  property  stolen 
within  the  preceding  period  of  twelve  months,  is 
deemed  to  be  relevant  to  the  question  whether  he 
knew  the  property  to  be  stolen  which  forms  the 
subject  of  the  proceeding  taken  against  him. 

If,  in  the  case  of  such  proceedings  as  aforesaid, 
evidence  has  been  given  that  the  stolen  property 
has  been  found  in  the  possession  of  the  person 
proceeded  against,  the  fact  that  such  person  has 
within  five  years  immediately  preceding  been  con- 
victed of  any  offense  involving  fraud  or  dishon- 
esty, is  deemed  to  be  relevant  for  the  purpose  of 


*  See  Note  at  end  of  Article  12. 


138  ACTS   SHOWING  INTENTION 

proving  that  the  person  accused  knew  the  prop- 
erty which  was  proved  to  be  in  his  possession  to 
have  been  stolen,  and  may  be  proved  at  any  stage 
of  the  proceedings:  provided  that  not  less  than 
seven  days'  notice  in  writing  has  been  given  to 
the  person  accused  that  proof  is  intended  to  be 
given  of  such  previous  conviction,  (a) 

Illustrations. 

(a)  A  is  charged  with  receiving  two  pieces  of  silk  from 
B,  knowing  them  to  have  been  stolen  by  him  from  C. 

The  facts  that  A  received  from  B  many  other  articles 
stolen  by  him  from  C  in  the  course  of  several  months,  and 
that  A  pledged  all  of  them,  are  deemed  to  be  relevant  to  the 
fact  that  A  knew  that  the  two  pieces  of  silk  were  stolen 
by    B    from    C. — 1 

(b)  A  is  charged  with  uttering,  on  the  12th  December, 
1854,  a  counterfeit  crown  piece,  knowing  it  to  be  counterfeit. 

The  facts  that  A  uttered  another  counterfeit  crown  piece 
on  the  11th  December,  1854,  and  a  counterfeit  shilling  on 
the  4th  January,  1855,  are  deemed  to  be  relevant  to  show  A's 
knowledge  that  the  crown  piece  uttered  on  the  12th  was 
counterfeit. — 2 

(c)  A  is  charged  with  attempting  to  obtain  money  by  false 
pretenses,  by  trying  to  pledge  to  B  a  worthless  ring  as  a 
diamond    ring. 

The  facts  that  two  days  before,  A  tried,  on  two  separate 
occasions,  to  obtain  money  from  C  and  D,  respectively,  by  a 
similar  assertion  as  to  the  same,  or  a  similar  ring,  and  that 
on  another  occasion  on  the  same  day  he  obtained  a  sum  of 
money  from  E  by  pledging  as  a  gold  chain  a  chain  which  was 
only  gilt,  are  deemed  to  be  relevant,  as  showing  his  knowl- 
edge  of   the   quality   of   the   ring. — 3 

(d)  A  is  charged  with  obtaining  money  from  B  by  falsely 
pretending  that  Z  had  authorized  him  to  do  so. 

The  fact  that  on  a  different  occasion  A  obtained  money 
from   C   by  a   similar   false   pretense    is   deemed   to   be    irrele- 

(a)  [This  provision  is  new,  and  peculiar  to  the 
English  statute.] 

1  Dunn's    Case,    1    Moo.    C.    C.    146. 

2  R.  v.  Forster,  Dear.   456;  and  see  R.  v.  Weeks,  L.  &  C.   18. 

3  R.  v.  Francis,  L.  R.  2  C.  C.  R.  128.  The  case  of  R.  v. 
Cooper,  L.  R.  1  Q.  B.  D.  (C.  C.  R.)  19,  is  similar  to  R.  v. 
Francis,  and  perhaps  stronger. 


ACTS  SHOWING  INTENTION  139 

vant — 4 — as  A's  knowledge  that  he  had  no  authority  from 
Z  on  the  second  occasion  had  no  connection  with  his  knowl- 
edge that  he  had  no  authority  from  Z  on  the  first  occasion. 

(e)  A  sues  B  for  damage  done  by  a  dog  of  B's,  which  B 
knew    to   be   ferocious. 

The  facts  that  the  dog  had  previously  bitten  X,  Y  and 
Z,  and  that  they  had  made  complaints  to  B,  are  deemed  to 
be  relevant. — 5 

(f)  The  question  is,  whether  A,  the  acceptor  of  a  bill  of 
exchange,  knew  that  the   name  of  the  payee  was  fictitious. 

The  fact  that  A  had  accepted  other  bills  drawn  in  the  same 
manner  before  they  could  have  been  transmitted  to  him  by 
the  payee,  if  the  payee  had  been  a  real  person,  is  deemed  to 
be  relevant,  as  showing  that  A  knew  that  the  payee  was  a 
fictitious    person. — 6 

(g)  A  sues  B  for  a  malicious  libel.  Defamatory  state- 
ments made  by  B  regarding  A  for  ten  years  before  those  in 
respect  of  which  the  action  is  brought  are  deemed  to  be  rele- 
vant to  show  malice. — 7 

(h)  A  is  sued  by  B  for  fraudulently  representing  to  B  that 
C  was  solvent,  whereby  B,  being  induced  to  trust  C,  who  was 
insolvent,    suffered    loss. 

The  fact  that,  at  the  time  when  A  represented  C  to  be  sol- 
vent, C  was  to  A's  knowledge  supposed  to  be  solvent  by  his 
neighbors  and  by  persons  dealing  with  him,  is  deemed  to  be 
relevant,  as  showing  that  A  made  the  representation  in  good 
faith.— 8 

(i)  A  is  sued  by  B  for  the  price  of  work  done  by  B,  by 
the  order  of  C,  a  contractor,  upon  a  house  of  which  A  Is 
owner. 

A's    defense    is    that    B's    contract    was    with    Q, 

The  fact  that  A  paid  C  for  the  work  in  question  is  deemed 
to  be  relevant,  as  proving  that  A  did,  in  good  faith,  make 
over  to  C  the  management  of  the  work  in  question,  so  that 
C  was  in  a  position  to  contract  with  B  on  C's  own  account, 
and   not  as  agent   for   A. — 9. 

(j)  A  is  accused  of  stealing  property  which  he  had  found, 
and  the  question  is.  whether  he  meant  to  steal  it  when  he 
took  possession  of  it. 

The  fact  that  public  notice  of  the  loss  of  the  property  had 
been  given  in  the  place  where  A  was.  and  in  such  a  manner 
that   A    knew   or   probably   might   have  known  of   it.   is   deemed 

4  R.  v.  Holt,  Bell,  ('.  < '.  280;  and  see  R.  v.  Francis,  ub. 
sup.   p.    130. 

5  See  cases  collected  in  Roscoe's  Nisi   Prius,  731*. 
B  Gibson  v.  Hunter,  :.'  H.  Bl.  288. 

7  Barrett  v.   Long,  3  H.  L.  C.   395,    111. 

8  Sheen   v.    Uumpstead.    J    11.   &   C.    193. 

9  (Jerish    v.   t'hartier,   1   C.   B.    13. 


140  ACTS   SHOWING  INTENTION 

to  be  relevant,  as  showing  that  A  did  not,  when  he  took  pos- 
session of  it,  in  good  faith  believe  that  the  real  owner  of  the 
property  could  not  be  found. — 10 

(k)  The  question  is,  whether  A  is  entitled  to  damages 
from  B,  the  seducer  of  A's  wife. 

The  fact  that  A's  wife  wrote  affectionate  letters  to  A  be- 
fore the  adultery  was  committed,  is  deemed  to  be  relevant, 
as  showing  the  terms  on  which  they  lived  and  the  damage 
which  A  sustained. — 11 

(1)  The  question  is,  whether  A's  death  was  caused  by 
poison. 

Statements  made  by  A  before  his  illness  as  to  his  state  of 
health,  and  during  his  illness  as  to  his  symptoms,  are  deemed 
to    be    relevant   facts. — 12 

(m)  The  question  is,  what  was  the  state  of  A's  health  at 
the  time  when  an  insurance  on  her  life  was  effected  by  B. 

Statements  made  by  A  as  to  the  state  of  her  health  at  or 
near  the  time  in  question  are  deemed  to  be  relevant  facts. — 13 

(n)  The  question  is,  whether  A,  the  captain  of  a  ship, 
knew  that  a  port  was  blockaded. 

The  fact  that  the  blockade  was  notified  in  the  Gazette  is 
deemed  to  be  relevant. — 14 

(o)  [The  question  is,  as  to  the  intent  with  which  defend- 
ant sent   the   prosecuting  witness   to   a  house   of  prostitution. 

Evidence  of  previous  attempts  to  send  girls  to  the  same 
house    for    purposes    of    prostitution    was    admissible.] — 15 

(p)  [Accused  is  charged  with  receiving  one  stolen  pool 
ball. 

Evidence  may  be  received  that  he  also  had  received  four 
other    stolen    pool    balls,    to    show    intent.] — 16 

(q)  [The  question  is,  whether  defendant  had  agreed  to  pay 
for  material  furnished  a  third  person  during  certain  months. 

Bills  for  material  furnished  the  third  person  by  plaintiff 
during  the  months  immediately  preceding  said  months  in 
which    the    bills    in    controversy    accrued    are    admissible,    as 

10  This  illustration  is  adapted  from  Preston's  Case,  2 
Den.  C.  C.  353;  but  the  misdirection  given  in  that  case  is  set 
right.  As  to  the  relevancy  of  the  fact,  see,  in  particular, 
Lord  Campbell's   remark  on   p.    359. 

11  Trelawney  v.  Coleman,  1  B.  &  A.  90.  (If  written  before 
her  misconduct,  and  not  open  to  the  suspicion  of  collusion. 
1   Greenl.   Ev.,   §    102.) 

12  bt.  v.  Palmer.  See  my  "Gen.  View  of  Crim.  Law,"  pp. 
3G3,    377    (evidence    of   Dr.    Savage    and    Mr.    Stephens). 

13  Aveson   v.    Lord   Kinnaird,    6    Ea.    188. 

14  Harratt  v.  Wise,   9   B.  &  C.   712. 

15  (People  v.  Grubb,  24  Cal.  App.  604,  141  P.  1051.] 

10    [Henderson   v.    State,    (Tex.    Cr.   R.),    172    S.   W.    793.] 


ACTS  SHOWING  INTENTION  141 

tending  to  show  that  defendant  had  made  the  alleged  agree- 
ment.]— 17 

(r)  [The  question  is,  whether  one  making  certain  state- 
ments and  representations  knew  they  were  false. 

Evidence  of  similar  false  representations  made  by  him 
to  others  is  admissible.] — 18 

(s)  [The  question  is,  whether  the  owner  of  a  dog  which 
had  bitten  a  child  knew  of  its  savageness. 

The  fact  that  it  had  previously  bitten  two  children  and 
that  its  owner  had  been  warned  of  its  vicious  propensities 
and  been  told  of  its  biting  a  child  is  relevant.] — 19 

(t)  [The  question  is,  whether  defendant  made  and  uttered 
a  -fictitious  order  for  the  payment  of  money. 

The  fact  that  he  had  on  former  occasions  gone  under  as- 
sumed names,  and  been  arrested,  is  not  admissible  to  show 
intent,  system  and  guilty  knowledge.] — 20 

SHOWING    INTENTION. 

Where  a  crime  is  committed  in  a  systematic  manner, 
it  is  competent  to  prove  other  similar  transactions,  oc- 
curring at  different  times  and  places,  to  show  intent  or 
motive  of  accused. — Setzer  v.  State,  (Ark.),  161  S.  W.  190; 
Jaynes  v.  People,  44  Colo.  535,  99  P.  325;  State  v.  O'Neil, 
24  Ida.  582,  135  P.  60;  Territory  v.  West,  14  N.  M.  546,  99 
P.    343. 

Similar  misrepresentations  made  to  others  are  admis- 
sible.—McCauley  v.  Custer,  93  Kan.  27,  143  P.  489;  Loftus 
v.  Sturgis  (Tex.  Civ.  App.),  167  S.  W.  14. 

For  the  purpose  of  showing  the  guilty  intent  of  the  ac- 
cused in  a  prosecution  for  obtaining  goods  by  fraudulent 
representations  it  may  be  shown  that  he  was  engaged  in 
other  similar  frauds,  provided  the  transactions  are  so 
connected  as  to  time  and  so  similar  in  their  other  rela- 
tions that  the  same  motive  may  reasonably  be  imputed  to 
them  all: 

Colorado:  Housch  v.  People,  24  Colo.  262,  50  P.  1036 
(obtaining  sheep  by  similar  representations) ;  but  see 
Mahler  v.  Beishline,  46  Colo.  603,  105  P.  874,  where  testi- 


17  [Grand  Forks   Lumber  Co.   v.   Tourtelot,   7   N.   D.   587,  75 
N.  W.   901.] 

18  [Ogden    Valley    Trout    &    Resort    Co.    v.    Lewis,    41    Utah 
183,    125    P.    687.] 

19  [Halm    v.   Madison,   65   "Wash.   588,   118   P.   755.] 

20  [People   v.   Arlington,   123   Cal.   356.   55   P.    1003.] 


142  ACTS   SHOWING  INTENTION 

ruony  of  other  members  of  a  religious  community  of 
which  defendant  was  the  head  as  to  their  experience  and 
attempts  to  obtain  their  property  was  held  irrelevant  in 
an  action  where  plaintiff  claimed  to  have  been  deluded 
by  false  pretenses  of  defendant  to  supernatural  power  to 
treat  certain  maladies  by  which  she  was  afflicted,  and  in- 
duced to  surrender  her  property  and  put  it  it  in  the  hands 
of  defendant. 

Kansas:  McCauley  v.  Custer,  93  Kan.  27,  143  P.  489 
(similar  fraudulent  representations  to  induce  contracts). 
Nevada:  Swinney  v.  Patterson,  25  Nev.  411,  62  P.  1 
(similar  fraudulent  representations  for  the  purpose  of 
obtaining  notes). 

South  Dakota:  First  Nat.  Bank  v.  Harvey,  29  S.  D.  284, 
137  N.  W.  365  (fraud  in  inducing  the  execution  of  a  note; 
similar  frauds  practiced  by  the  payee  upon  other  parties, 
admissible). 

Washington:  But  in  an  action  on  account  of  fraudulent 
representations  in  the  purchase  of  town  lots,  evidence  of 
another  who  had  purchased  of  defendant  a  few  weeks  prior 
to  the  purchase  by  plaintiff,  and  who  claimed  to  have 
been  defrauded  in  much  the  same  way,  excluded. — McKay 
v.  Russell,  3  Wash.  378,  28  P.  908. 

Arkansas.  In  a  prosecution  for  stealing  horses,  the  lar- 
ceny at  the  same  time  of  a  saddle  and  bridle  from  third 
parties,  which  were  placed  on  the  horses  stolen,  inadmis- 
sible to  show  intent. — Endaily  v.  State,  39  Ark.  278. 

Evidence  that  defendant  had  taken  other  females  to 
houses  of  prostitution  is  admissible  to  show  intent. — 
Boyle  v.  State,  110  Ark.  318,  161  S.  W.  1049. 
California.  In  a  prosecution  for  having  counterfeit  coin 
with  intent  to  pass  it,  the  sale  of  counterfeit  coin  to  a 
confederate  is  admissible  on  the  question  of  intent. — 
People  v.  Farrell,  30  Cal.  316. 

In  a  prosecution  for  the  larceny  of  a  horse,  the  fact 
that  other  horses  disappearing  at  the  same  time  were 
found  in  possession  of  accused  is  relevant. — People  v. 
Lopez,  59  Cal.  362. 

Other  forged  notes  admissible  to  show  intent. — People 
v.  Baird,  105  Cal.  126,  38  P.  633. 

On  a  charge  of  shooting  an  officer,  the  fact  that  defend- 


ACTS   SHOWING  INTENTION  143 

ant  had  shot  others  just  before  his  arrest  is  relevant. — 
People  v.  Wilson,  117  Cal.  688,  49  P.  988. 

Prosecution  under  statute  for  administering  drugs,  etc., 
intended  to  produce  miscarriage.  Admission  of  defend- 
ant that  he  had  given  same  medicine  to  others  admissible 
to  show  motive  and  intent. — People  v.  Richardson,  161 
Cal.  552,  120  P.  24. 

Conspiracy  to  defraud  plaintiff  by  false  representations. 
Evidence  of  similar  transactions  between  defendant  and 
others  is  relevant. — People  v.  Cory,  26  Cal.  App.  735,  148 
P.  532. 

Where  the  doing  of  an  act  is  proved,  evidence  of  like 
offenses  may  be  received  to  repel  any  inference  of  acci- 
dent or  mistake,  or  to  negative  an  innocent  state  of  mind 
existing  at  the  time. — People  v.  Byrnes,  27  Cal.  App.  428, 
148  P.  944. 

Colorado.  For  the  purpose  of  showing  intent  in  alleged 
larceny  of  sheep  by  means  of  fraud,  similar  transactions 
with  another  person  at  the  same  time  are  admissible. — 
Housh  v.  People,  24  Colo.  262,  50  P.  1036. 

Testimony  of  other  members  of  a  religious  sect  as  to 
their  experience  and  attempts  to  obtain  their  property  are 
inadmissible  in  an  action  to  recover  property  conveyed  to 
the  head  of  such  sect  by  fraudulent  representations. — 
Mahler  v.  Beishline,  46  Colo.  603,  105  P.  874. 

Charge  of  homicide  in  attempt  to  commit  highway  rob- 
bery. To  show  intent  of  prisoner  to  commit  a  robbery 
evidence  of  several  robberies  committed  by  him  shortly 
before  and  shortly  after  the  homicide  was  admissible. — 
Hillen  v.  People.  59  Colo.  280,  149  P.  250. 
Idaho.  In  an  action  for  damages  for  assault  and  battery, 
evidence  of  the  intoxication  of  defendant  and  of  assaults 
on  other  persons  before  and  after  the  attack  on  plaintiff 
is  admissible.  ! larshbarger  v.  Murphv.  22  Idaho  261,  125 
P.   180. 

Kansas.  Where  fraud  and  intention  not  to  carry  out  a 
contract  is  charged,  it  is  proper  to  show  that  the  same 
party  made  similar  but  not  identical  contracts  with  other 
grantees  which  were  not  carried  out. — People's  Bank  of 
Minneapolis  v.  Reed,  86  Kan.  245,  120  P.  339. 
Nebraska.  The  fact  that  defendant  bad  Bfl  fires  to  ad- 
jacent buildings  on  the  name  night,  is  relevant   in  a  prose- 


144  ACTS   SHOWING  INTENTION 

■cution  for  arson.— Knights  v.  State,  58  Neb.  225,  78  N.  W. 
508. 

To  prove  fraudulent  intent  in  the  issuance  of  a  forged 
dfe£d,  evidence  of  the  execution  of  a  forged  deed  to  the 
sAme  land  a  short  time  before  is  admissible. — Burlingim 
v.  State,  61  Neb.  276,  85  N.  W.  77. 

On  a  charge  of  larceny  of  a  horse  while  using  it  as 
bailee  for  hire,  evidence  that  defendant  while  using  the 
torse  had  borrowed  money  upon  fraudulent  pretenses  in- 
admissible.—Davis  v.  State,  54  Neb.  177,  74  N.  W.  599. 
INevada.  To  prove  intent  of  accused  at  the  time  of  entry 
into  the  dwelling  house  of  A.,  the  fact  that  accused  and 
other  defendants  agreed  to  commit  a  robbery  on  the  per- 
son of  A.,  but  did  not  do  so  because  they  discovered  that 
he  had  nothing  to  be  taken,  is  admissible.— State  v. 
Cowell,  12  Nev.  337. 

Oregon.  Where  evidence  of  similar  offenses  is  intro- 
duced to  show  motive  and  intent  defendant  may  explain 
the  transactions. — State  v.  Germain,  54  Or.  395,  103  P.  521. 
Texas.  Where  defendant  refused  to  accept  an  order  for 
steel  bars  on  the  ground  that  plaintiff's  agent  had  fraud- 
ulently inserted  in  the  contract  the  word  "feet"  instead 
iof  "inches,"  evidence  of  other  purchases  showing  similar 
acts  on  the  part  of  the  agent  is  admissible  as  showing 
intent. — Compagnie  Des  Metaux  Unital  v.  Victoria  Mfg. 
vCfc.,    (Tex.  Civ.  App.),   107   S.  W.   651. 

Contracts  made  between  a  corporation  and  persons  pur- 
chasing land  of  it,  wherein  the  corporation  agreed  to 
furnish  water  for  such  land,  are  not  admissible  to  show 
that  such  an  agreement  should  have  been  inserted  in  a 
contract  for  the  sale  of  similar  land  to  another  person. — 
Judson  v.  Bell,    (Tex.  Civ.  App.),  153  S.  W.  169. 

Proof  of  other  offenses  is  not  admissible  to  show  sys- 
tem, intent  or  identity,  unless  some  of  these  matters  are 
in  issue.  (Other  burglaries  on  independent  dates  inadmis- 
sible.)—Bowman  v.  State,  70  Tex.  Cr.  R.  22,  155  S.  W. 
939. 

When  extraneous  crimes  are  res  gestae  of  the  offense 
on  trial,  or  tend  to  show  the  intent  with  which  the  person 
on  trial  acted  when  such  intent  is  an  issue  in  the  case, 
or  which  tend  to  connect  the  defendant  with  the  offense 


ACTS  SHOWING  INTENTION  145 

for  which  he  is  on  trial,  evidence  of  them  is  admissible. — 
Serrato  v.  State,  74  Tex.  Cr.  R.  413,  171  S.  W.  1133. 
Utah.  In  a  prosecution  for  larceny  of  a  cow,  where  it 
appears  that  its  hide  was  found  in  defendant's  barn,  the 
fact  that  other  hides  were  found  therein  at  the  same 
time  is  irrelevant  to  prove  intent,  where  it  was  not  shown 
that  such  hides  or  the  animals  from  which  they  had  been 
taken  were  stolen,  or  wrongfully  obtained,  or  that  defend- 
ant's taking  or  receiving  them  had  anything  to  do  or  was 
in  any  wise  connected  with,  or  was  a  part  of,  the  trans- 
action of  the  charged  larceny. — State  v.  Bowen,  43  Utah 
111,   134   P.   623. 

Washington.  On  a  prosecution  for  larceny  of  a  horse, 
the  larceny  by  defendant  of  another  horse  turned  on  the 
range  with  the  former,  is  inadmissible. — State  v.  Gott- 
freedson,  24  Wash.  398,   64  P.   523. 

On  a  charge  of  burglary,  burglaries  of  adjacent  houses 
on  the  same  night  are  relevant. — State  v.  Norris,  27  Wash. 
453,  67  P.  983. 

Evidence  is  admissible  to  show  that  at  the  time  defend- 
ant sold  stock  to  plaintiff  at  par,  representing  that  to 
be  its  value,  he  was  selling  or  offering  for  sale  the  very 
same  stock  for  fifty-five  per  cent  of  the  price  paid  by 
plaintiff.— Gilluly  v.  Hosford,  45  Wash.  594,  88  P.  1027. 
SHOWING    KNOWLEDGE. 

In  a  prosecution  for  forgery,  evidence  of  other  forgeries 
of  similar  instruments  about  the  same  time  Is  admissible, 
to  show  guilty  knowledge  and  intent. — People  v.  McGlade, 
139  Cal.  66.  72  P.  600;  Davis  v.  State,  58  Neb.  465,  78  N. 
\V.  930;  Taylor  v.  State,  47  Tex.  Cr.  R.  101,  81  S.  W. 
933. 

California.  That  defendant  knew  of  his  dog  biting  an- 
other child  and  had  paid  the  doctor's  bill  for  attending  its 
injuries,  is  relevant  to  show  knowledge  of  its  vicious 
propensity.— O'Rourke  v.  Finch.  9  Cal.  App.  324,  99  P.  392. 

In  a  prosecution  for  fraudulently  presenting  a  false 
claim  of  loss  by  fire  to  an  insurance  company,  where  de- 
fendant claimed  that  he  was  unfamiliar  with  the  prepara- 
tion of  claims  of  loss,  evidence  is  relevant  that  on  other 
occasions  and  under  different  names,  defendant  had  suf- 
fered losses  by  fire,  and  that,  on  those  occasions  he  had 


146  ACTS  SHOWING   INTENTION 

prepared  proofs  of  loss. — People  v.  Panagoit,  25  Cal.  App. 
158,  143  P.  70. 

Idaho.  Where  guilty  knowledge  is  required  to  be  proven, 
evidence  of  the  commission  of  other  similar  offenses  by 
the  accused  is  admissible.  (False  report  of  condition  of 
savings  bank.)— State  v.  O'Neil,  24  Ida.  582,  135  P.  60. 
Kansas.  In  a  prosecution  for  larceny,  the  fact  that  on 
defendant's  premises  were  found  many  other  stolen 
articles  in  places  carefully  arranged  for  concealment  of 
such  articles  is  relevant  to  show  guilty  knowledge. — Lewis 
v.  State,  4  Kan.  306. 

Nebraska.  Receipt  of  other  stolen  property  from  one  of 
the  parties  charged,  closely  related  in  point  of  time,  ad- 
missible to  show  scienter. — Goldsberry  v.  State,  66  Neb. 
312,  92  N.  W.  906. 

Washington.  Evidence  that  other  persons  had  fallen  on 
a  crosswalk  about  or  within  a  short  time  of  the  day  when 
plaintiff  was  injured  is  admissible  as  tending  to  prove 
notice.— Piper  v.  City  of  Spokane,  22  Wash.  147,  60  P. 
138;  see  also  Falldin  v.  City  of  Seattle,  57  Wash.  307, 
106  P.   914. 

That  the  defendant  had  used  the  same  means,  of  padded 
books,  to  defraud  other  contractors  with  whom  he  had 
contracts  to  furnish  sand,  is  admissible. — Ryan  v.  Dowell, 
86  Wash.  76,  149  P.  343.  (But  see  State  v.  Bokien,  14 
Wash.  403,  44  P.  889,  where  other  previous  drawings  of 
check  on  no  funds  held  inadmissible  to  show  knowledge 
on  occasion  in  question.) 

SHOWING    MENTAL   CONDITION. 

Where  incest  or  seduction  is  charged,  prior  or  subse- 
quent acts  of  sexual  intercourse  between  the  parties  may 
be  proved.— People  v.  Patterson,  102  Cal.  239,  36  P.  436; 
Vickers  v.  State,  (Tex.  Cr.  R.),  169  S.  W.  669;  State  v. 
Tilden,  79  Wash.  472,  140  P.  680. 

In  sexual  crimes,  with  consent,  similar  acts,  whether 
prior  or  subsequent  to  the  date  of  the  specific  act  charged, 
are,  if  not  too  remote,  admissible  to  show  the  disposition 
of  defendant  towards  the  prosecutrix. — State  v.  Vinn,  50 
Mont.  27,  144  P.  773;  Flowers  v.  State,  10  Okl.  Cr  494, 
138  P.  1041;  Williamson  v.  State,  72  Tex.  Cr.  R.  618, 
163  S.  W.  435;  Cowser  v.  State,  70  Tex.  Cr.  R.  265,  157 
S.   W.   758. 


FACTS  SHOWING  SYSTEM  147 

In  prosecutions  for  statutory  rape  evidence  of  similar 
acts  of  intercourse  admissible. — State  v.  Keeler,  (Mont.), 
156  P.  1080;   Miller  v.  State,    (Tex.  Cr.  R.),  185  S.  W.  29. 

Intercourse  with  prosecutrix  at  times  subsequent  to 
the  offense  charged  is  admissible  to  show  predisposition 
of  the  parties  to  have  intercourse. — People  v.  Parrish,  25 
Cal.  App.  314,  143  P.  546;  Hudson  v.  State,  97  Neb.  47, 
149  N.  W.  104. 

California.  That  a  horse  had  upon  one  occasion  kicked 
up  when  struck  with  a  whip  or  accidentally  with  a  fork 
is  not  sufficient  to  show  that  he  was  vicious. — Haneman 
v.  Western  Meat  Co.,   8  Cal.  App.  698,  97  P.   695. 

SHOWING   MALICE. 
California.     In  an  action  of  slander,   words   substantially 
the  same  as  those  declared  on,  spoken  by  the  defendant 
after  the  commencement  of  the  action,  are  admissible  on 
the  question  of  malice. — Chamberlain  v.  Vance,  51  Cal.  75. 

Article  12.* 

facts    showing    system. 

When  there  is  a  question  whether  an  act  was 
accidental  or  intentional,  the  fact  that  such  act 
formed  part  of  a  series  of  similar  occurrences,  in 
each  of  which  the  person  doing  the  act  was  con- 
cerned, is  deemed  to  be  relevant. 

Illustrations. 

(a)  A  is  accused  of  Betting  lire  to  his  house  in  order  to 
obtain   money    for   which    it    is    insured. 

The  facts  that  A  had  \>v<\  iously  lived  in  two  other  houses 
successively,  each  of  which  he  insured,  in  each  of  which  a 
fire  occurred,  and  that  after  each  of  those  fires  A  received 
payment  from  ■>  different  insurance  office,  are  deemed  to  be 
relevant,  as  tending  to  show  that  the  fires  were  not  acci- 
dental.— 1 

1    U.    v.    Clay,    I    I-'.    &    F.    1102. 


*  See  Note  at  end  of  Article. 


148  FACTS  SHOWING  SYSTEM 

(b)  A  is  employed  to  pay  the  wages  of  B's  laborers,  and 
it  is  A's  duty  to  make  entries  in  a  book  showing  the  amounts 
paid  by  him.  He  makes  an  entry  showing  that  on  a  particu- 
lar occasion  he  paid  more  than  he  really  did  pay. 

The  question  is,  whether  this  false  entry  was  accidental 
or   intentional. 

The  fact  that  for  a  period  of  two  years  A  made  other  simi- 
lar false  entries  in  the  same  book,  the  false  entry  being  in 
each   case   in   favor  of  A,   is  deemed   to  be  relevant. — 2 

(c)  The  question  is,  whether  the  administration  of  poison 
to  A,  by  Z,  his  wife,  in  September,  1848,  was  accidental  or 
intentional. 

The  facts  that  B,  C  and  D  (A's  three  sons),  had  the  same 
poison  administered  to  them  in  December,  1848,  March,  1849, 
and  April,  1849,  and  that  the  meals  of  all  four  were  pre- 
pared by  Z,  are  deemed  to  be  relevant,  though  Z  was  indicted 
separately  for  murdering  A,  B  and  C,  and  attempting  to  mur- 
der  D. — 3 

(d)  A  promises  to  lend  money  to  B  on  the  security  of  a 
policy  of  insurance  which  B  agrees  to  effect  in  an  insurance 
company  of  his  choosing.  B  pays  the  first  premium  to  the 
company,  but  A  refuses  to  lend  the  money  except  upon  terms 
which  he  intends  B  to  reject,  and  which  B  rejects  accord- 
ingly. 

The  fact  that  A  and  the  insurance  company  have  been 
engaged  in  similar  transactions  is  deemed  to  be  relevant  to 
the  question  whether  the  receipt  of  the  money  by  the  com- 
pany  was   fraudulent. — 4 

(e)  [The  question  is,  whether  plaintiff's  agent,  fraudu- 
lently and  without  defendant's  knowledge,  inserted  in  an 
order    for    steel   bars    the    word    "feet,"    instead    of    "inches." 

The  fact  that  the  same  agent  had  done  similar  acts  is  rele- 
vant to  show  fraudulent  intent.] — 5 

(f)  [The  question  is,  whether  a  person  had  conveyed  cer- 
tain property  with  intent  to  hinder,  delay  or  defraud  cred- 
itors. 

The  fact  that  he  had  made  other  conveyances  shortly  be- 
fore   for    insufficient    consideration,    is    relevant.] — 6 

(g)  [The  question  is,  whether  plaintiff's  work  was  ineffi- 
cient and  his  charges  excessive. 

2  R.  v.  Richardson,  2  P.  &  F.  1102. 

3  R.  v.  Geering,  18  L.  J.  M.  215;  cf.  R.  v.  Garner,  3  F.  & 
F.   681. 

4  Blake    v.    Albion    Life    Assurance    Society,    L.    R.    4    C.    P. 

D.  94. 

5  [Compagnie  Des  Metaux  Unital  v.  Victoria  Mfg.  Co.,  (Tex. 
Civ.   App.),    107    S.   W.    651.] 

6  [First  State  Bank  v.  Knox,  (Tex.  Civ.  App.),  173  S.  W. 
894.] 


FACTS  SHOWING  SYSTEM  149 

Evidence  that  similar  work  done  by  him  for  others  was 
inefficient  and  the  charges  excessive,  is  inadmissible,  as  tend- 
ing to  show  a  general  course  of  dealing  similar  to  the  facts 
alleged    by    defendant.] — 7 

(h)  [The  question  is,  whether  defendant,  acting  as  agent 
for  the  sale  of  certain  stock  for  plaintiff,  concealed  the  actual 
consideration   received. 

Evidence  of  similar  representations  to  other  stockholders 
similarly   situated    is    relevant.] — 8 

SHOWING  SYSTEM. 

To  show  system  and  negative  mistake,  other  similar 
acts  of  the  party  are  admissible: 

Arizona:  Qualey  v.  Territory,  8  Ariz.  45,  68  P.  546  (falsi- 
fication of  books;  alteration  of  other  parts  of  books  not 
embraced  in  indictment). 

California:  People  v.  Bidleman,  104  Cal.  609,  38  P.  502 
(other  money  received  by  defendant  and  not  accounted 
for) ;  People  v.  McGlade,  139  Cal.  66,  72  P.  600  (other  for- 
geries of  similar  instruments  at  about  the  same  time). 
Oklahoma:  Beberstein  v.  Territory,  8  Okl.  467,  58  P. 
641  (other  larcenies  admitted,  where  they  were  part  of 
the  same  plan  and  closely  connected). 
Oregon:  State  v.  Savage,  30  Or.  191,  60  P.  610  (larceny 
from  express  company;  former  plan  to  rob  a  train). 
Texas:  Holt  v.  State,  39  Tex.  282,  46  S.  W.  829  (other 
larcenies). 

Wyoming:  Edelhoff  v.  State,  5  Wyo.  19,  36  P.  627  (em- 
bezzelment  of  money  received  for  rents;  retention  of  other 
money  similarly  received). 

In  prosecutions  for  illegal  sales  of  liquor,  facts  and  cir- 
cumstances of  other  sales  are  admitted  in  corroboration 
of  and  to  throw  light  on  the  offense  charged  and  to  show 
system,  plan,  knowledge  and  intent: 
Arizona:     Cluff  v.  State,  16  Ariz.  179,  142  P.  644. 
North   Dakota:     State  v.  McKone,  —  N.  D.  — ,  154  N.  W. 
256   (recent  and  frequent  large  importations). 
Texas:     Cole  v.  State,  72  Tex.  Cr.  R.  209,  162  S.  W.  880; 
Perryman  v.  State,   (Tex.  Cr.  R.),  173  S.  W.  1195. 
Arkansas.     Fraudulent    contemporaneous    purchases    from 
others  are  inadmissible  to  show  another  purchase  fraud- 

7  [Randle  v.   Barden,    (Tex.   Civ.    App.),    161   S.   W".    1063.] 

8  [Barbar  v.   Martin.   67  Neb.   445,   93   N.   W.   722.) 


150  FACTS  SHOWING  SYSTEM 

ulent,  where  it  is  not  shown  that  there  was  a  common 
fraudulent  purpose  in  all  such  purchases. — White  v.  Beal 
&  Fletcher  Grocer  Co.,  65  Ark.  278,  45  S.  W.  1060. 
Colorado.  In  an  action  of  deceit  in  the  sale  part  of  a 
tract  of  land,  plaintiff  may  prove  similar  misrepresenta- 
tion made  to  parties  who  bought  other  parts  of  the  same 
tract. — Mayo  v.  Wahlgreen,  9  Colo.  App.  506,  50  P.  40. 

In  a  prosecution  for  obtaining  money  by  the  confidence 
game,  by  selling  an  interest  in  a  business  which  did  not 
exist,  evidence  of  transactions  with  other  parties  which 
tended  to  establish  a  fraudulent  scheme  to  cheat  and  de- 
fraud the  prosecuting  witness  is  admissible,  when  such 
dealings  are  sufficiently  connected  in  point  of  time  to 
authorize  the  inference  that  the  transaction  under  con- 
sideration was  in  pursuance  of  the  same  general  purpose. 
—Elliott  v.  People,  56  Colo.  236,  138  P.  39. 
Kansas.  Evidence  of  the  practice  and  usage  of  others  in 
climbing  the  ladder  of  a  box  car  when  a  train  is  in  motion, 
such  as  deceased  fell  from,  is  not  admissible  to  prove  due 
care  on  his  part  at  the  time  of  the  accident. — Southern 
Kansas  Ry.  Co.  v.  Robbins,  43  Kan.  145,  23  P.  113. 

When  it  is  alleged  that  a  contract  to  supply  water  for 
irrigation  and  to  purchase  for  the  grantee  certain  land 
was  fraudulent,  and  not  carried  out  by  the  grantor,  it  is 
competent  to  show  that  the  same  party  made  similar  but 
not  identical  contracts  with  other  grantees  which  were 
not  carried  out,  as  tending  to  show  system,  motive  or 
intent. — People's  Bank  of  Minneapolis  v.  Reid,  86  Kan. 
■  245,    120   P.   339. 

Nebraska.  In  an  action  by  a  bona  fide  purchaser  of  a 
negotiable  instrument  for  value  before  maturity  without 
notice,  where  the  defense  is  fraud  in  the  procurement  of 
the  paper,  evidence  of  similar  frauds  committed  by  the 
agent  of  the  payee  about  the  same  time  is  inadmissible. — 
Hunt  v.  Van  Burg,  75  Neb.  304,  106  N.  W.  329. 
Nevada.  That  similar  fraudulent  representations  were 
made  by  the  payee  of  certain  notes  given  by  others  in  the 
purchase  of  goods  may  be  shown  as  a  defense  to  a  note 
alleged  to  have  been  obtained  by  fraudulent  representa- 
tions of  the  same  payee. — Swinney  v.  Patterson,  25  Nev. 
411,  62  P.  1. 
Oklahoma.     If  the  person  against  whom  fraud  is  alleged 


FACTS  SHOWING  SYSTEM  151 

should  be  proven  to  have  been  guilty  of  it  in  any  number 
of  instances,  still,  if  the  particular  act  sought  to  be  avoided 
be  not  shown  to  be  tainted  with  fraud,  it  cannot  be  af- 
fected with  other  frauds,  unless  in  some  way  it  be  con- 
nected with  it  or  form  part  of  them. — Price  v.  Winnebago 
Nat.  Bank,  14  Okl.  268,  79  P.  105. 

Evidence  of  other  offenses  is  competent  to  prove  the 
specific  offense  charged  when  it  tends  to  establish  a  sys- 
tematic scheme  or  plan  embracing  the  commission  of  two 
or  more  offenses  so  related  to  each  other  that  proof  of 
one  tends  to  establish  the  other,  or  to  connect  the  de- 
fendant with  the  commission  of  the  offense  charged. 
(Other  raised  vouchers  for  state  printing.) — State  v.  Rule, 
11  Okl.  Cr.  237,  144  P.  807. 

Texas.  Upon  an  issue  of  forgery  of  the  name  of  the 
maker  on  a  note,  the  fact  that  the  same  party  had  forged 
the  name  of  the  maker  on  another  note  is  inadmissible. — 
Kingsbury  v.  Waco  State  Bank,  30  Tex.  Civ.  App.  387,  70 
S.  W.  551. 

In  an  action  to  recover  property  by  fraudulent  and  de- 
ceitful acts,  the  fact  that  one  of  the  defendants  had  been 
arrested  for  swindling  and  was  under  bond  to  answer  such 
charge  is  irrelevant. — Witliff  v.  Spreen,  51  Tex.  Civ.  App. 
544,  112  S.  W.  98. 

An  isolated  instance  of  a  fictitious  claim  for  damages 
for  personal  injury  is  irrelevant  to  show  that  plaintiff's 
claim  in  the  present  case  was  fictitious,  no  plan  or  sys- 
tem of  plaintiff  in  maintaining  fictitious  claims  being 
shown.— Ft.  Worth  Belt  Ry.  Co.  v.  Cobell,  (Tex.  Civ.  App.), 
161  S.  W.  1083. 

In  support  of  allegations  of  fraud  and  misrepresenta- 
tions made  by  defendant  in  regard  to  weekly  amounts  re- 
ceived by  him  from  his  shows,  similar  misrepresentations 
made  to  other  parties  before  and  after  the  time  such 
representations  were  made  to  plaintiffs  are  admissible. — 
Loftus  v.  Sturgis,  (Tex.  Civ.  App.).  167  S.  W.  14. 
Washington.  In  a  suit  to  recover  money  paid  upon  a  real 
estate  contract,  procured  by  alleged  fraudulent  represen- 
tations, evidence  of  fraudulent  representations  made  by 
defendant  to  another  in  the  sale  of  lots  in  the  same  town 
a  few  weeks  prior  to  the  purchase  by  plaintiff  is  irrele- 
vant.—McKay  v.  Russell,  3  Wash.  37S.  28  P.  908. 


152  FACTS  SHOWING  SYSTEM 

Prosecution  for  stealing  cattle.  Fact  of  defendant's 
possession  of  other  cattle  not  shown  to  have  been  stolen, 
inadmissible. — State  v.  Humason,  5  Wash.  499,  32  P.  111. 

Where  plaintiff  claimed  fraud  in  the  sale  of  a  mine, 
evidence  of  misrepresentations  regarding  the  existence 
and  character  of  the  mine  and  value  of  ores,  made  to  per- 
sons other  than  plaintiff,  where  the  purpose  of  defendants 
was  to  sell  the  mine  to  any  one  that  could  be  induced  to 
purchase  it,  and  it  was  all  one  continuous  scheme  or 
transaction,  is  admissible. — Oudin  v.  Crossman,  15  Wash, 
519,  46  P.  1047. 

In  an  action  to  set  aside  a  quit  claim  deed  as  obtained 
by  fraud,  fraudulent  representations  made  by  defendant  to 
other  persons  owning  delinquency  certificates  on  the  same 
land,  which  defendant  bought,  are  relevant. — Stock  v. 
Nolte,  29  Wash.  188,  69  P.  753. 

The  question  being  whether  defendant's  indorsement  of 
a  note  was  procured  by  a  fraudulent  trick,  evidence  that 
at  about  the  same  time  the  indorsements  of  other  per- 
sons were  obtained  by  the  same  parties  who  obtained 
defendant's  indorsement,  by  the  perpetration  of  a  similar 
trick,  is  admissible  even  against  a  bona  fide  holder. — 
Yakima  Valley  Bank  v.  McAllister,  37  Wash.  566,  79  P. 
1119. 

False  representations  made  by  defendant  to  the  pur- 
chaser of  half  of  a  tract  of  land  sold  to  one  person  may 
be  shown  in  an  action  of  fraud  and  deceit  in  the  sale  of 
the  remainder  to  another  person. — Carnahan  v.  Moore,  70 
Wash.  623,  127  P.  195. 

In  a  prosecution  for  grafting  by  obtaining  campaign 
contributions  on  promises  of  immunity  from  prosecution 
for  gambling,  testimony  that  other  gamblers  had  con- 
tributed under  the  same  solicitations  is  admissible. — State 
v.  Shea,  78  Wash.  342,  139  P.  203.      . 

NOTE   VI. 
(To  Articles  10,  11,  12.) 

Article  10  is  equivalent  to  the  maxim.  "Res  inter  alios  acta 
alteri  nocere  non  debet,"  which  is  explained  and  commented 
on  in  Best,  ss.  506-510  (though  I  should  scarcely  adopt  his 
explanation  of  it),  and  by  Broom  ("Maxims,"  954-968).  The 
application  of  the  maxim  to  the  Law  of  Evidence  is  obscure, 
because     it    does    not     show    how     unconnected     transactions 


FACTS  SHOWING  SYSTEM  153 

should  be  supposed  to  be  relevant  to  each  other.  The  mean- 
ing of  the  rule  must  be  inferred  from  the  exceptions  to  it 
stated  in  Articles  11  and  12,  which  show  that  it  means,  you 
are  not  to  draw  inferences  from  one  transaction  to  another 
which  is  not  specifically  connected  with  it  merely  because  the 
two  resemble  each  other.  They  must  be  linked  together  by 
the  chain  of  cause  and  effect  in  some  assignable  way  before 
you  can  draw  your  inference. 

In  its  literal  sense  the  maxim  also  fails,  because  it  is  not 
true  that  a  man  cannot  be  affected  by  transactions  to  which 
he  is  not  a  party.  Illustrations  to  the  contrary  are  obvious 
and  innumerable;  bankruptcy,  marriage,  indeed  every  tran- 
saction  of   life,    would    supply    them. 

The  exceptions  to  the  rule  given  in  Articles  11  and  12  are 
generalized  from  the  cases  referred  to  in  the  illustrations.  It 
is  important  to  observe  that  though  the  rule  Is  expressed 
shortly,  and  is  sparingly  illustrated,  it  is  of  very  much 
greater  importance  and  more  frequent  application  than  the 
exceptions.  It  is  indeed  one  of  the  most  characteristic  and 
distinctive  parts  of  the  English  Law  of  Evidence,  for  this  is 
the  rule  which  prevents  a  man  charged  with  a  particular  of- 
fense from  having  either  to  submit  to  imputations  which  in 
many  cases  would  be  fatal  to  him,  or  else  to  defend  every 
action  of  his  whole  life  in  order  to  explain  his  conduct  on 
the  particular  occasion.  A  statement  of  the  Law  of  Evidence 
which  did  not  give  due  prominence  to  the  four  great  exclu- 
sive rules  of  evidence,  of  which  this  is  one  would  neither 
represent  the  existing  law  fairly  nor  in  my  judgment  im- 
prove  it. 

The  exceptions  to  the  rule  apply  more  frequently  to  crim- 
inal than  to  civil  proceedings,  and  in  criminal  cases  the  courts 
are  always  disinclined  to  run  the  risk  of  prejudicing  the  pris- 
oner by  permitting  matters  to  be  proved  which  tend  to  show 
in  general  that  he  is  a  bad  man,  and  so  likely  to  commit  a 
crime.  In  each  of  the  cases  by  which  Article  12  is  illustrated, 
the  evidence  admitted  went  to  prove  the  true  character  of 
facts  which,  standing  alone,  might  naturally  have  been  ac- 
counted for  on  the  supposition  of  accident — a  supposition 
which  was  rebutted  by  the  repetition  of  similar  occurrences. 
In  the  case  of  R.  v.  Gray  (Illustration  a)  there  were  many 
other  circumstances  which  would  have  been  sufficient  to  prove 
the  prisoner's  guilt,  apart  from  the  previous  fires.  That 
part  of  the  evidence,  indeed,  seemed  to  have  little  influence 
on  the  jury.  Gainer's  Case  (Illustration  c,  note)  was  an  ex- 
traordinary one,  and  its  result  was  in  every  way  unsatisfac- 
tory. Some  account  of  this  case  will  be  found  in  the  evidence 
given  by  me  before  the  Commission  on  Capital  Punishments 
which  sat  in   1866. 


154  EXISTENCE  OF  COURSE  OF  BUSINESS 

Article  13.* 

existence  of  course  of  business  when  deemed  to  be 
relevant. 

When  there  is  a  question  whether  a  particular 
act  was  done,  the  existence  of  any  course  of  office 
or  business,  according  to  which  it  naturally  would 
have  been  done,  is  a  relevant  fact. 

When  there  is  a  question  whether  a  particular 
person  held  a  particular  public  office,  the  fact  that 
he  acted  in  that  office  is  deemed  to  be  relevant,  (a) 

When  the  question  is  whether  one  person  acted 
as  agent  for  another  on  a  particular  occasion,  the 
fact  that  he  so  acted  on  other  occasions  is  deemed 
to  be  relevant. 

Illustrations. 

(a)  The  question  is,  whether  a  letter  was  sent  on  a  given 
day. 

The  postmark  upon  it  is  deemed  to  be  a  relevant  fact. — 1 

(b)  The  question  is,  whether  a  particular  letter  was  dis- 
patched. 

The  facts  that  all  letters  put  in  a  certain  place  were,  in  the 
common  course  of  business,  carried  to  the  post,  and  that 
that  particular  letter  was  put  in  that  place,  are  deemed  to 
be  relevant. — 2 

(c)  The  question  is,  whether  a  particular  letter  reached  A. 

The  facts  that  it  was  posted  in  due  course,  properly  ad- 
dressed, and  was  not  returned  through  the  dead  letter  office, 
are   deemed    to   be   relevant. — 3 

(a)      1    Ph.    Ev.    449;    R.    N.    P.    46;    T.    E.,    §    139.     Briggs 
v.    Hewey,    130    Mass.    187. 

1  R.   v.   Canning,   19   S.   T.   370. 

2  Hetherington  v.  Kemp,  4  Camp.  193;  and  see  Skilbeck  v. 
Garbett,  7  Q.  B.  846;  and  Trotter  v.  Maclean,  L.  R.  13  Ch. 
Div.  574.  (Lothrop  v.  Greenfield,  &c.  Ins.  Co.,  2  Allen 
(Mass.),    82.) 

3  Warren  v.  Warren,  1  C.  M.  &  R.  250;  Woodcock  v.  Houlds- 
worth,  16  M.  &  W.  124.  Many  cases  on  this  subject  are  col- 
lected in  Roscoe's  Nisi  Prius,  pp.   374,  375. 


*  See  Note  at  end  of  Article. 


EXISTENCE  OF  COURSE  OF  BUSINESS  155 

(d)  The  facts  stated  in  Illustration  (d)  to  the  last  article 
are  deemed  to  be  relevant  to  the  question  whether  A  was 
agent   to   the   company. — 4 

(e)  [The  question  is,  whether  there  was  unnecessary  delay 
in  a  shipment  of  cattle  over  a  certain  line. 

Evidence  as  to  the  customary  length  of  time  consumed  by 
freight  trains  from  the  point  of  shipment  to  point  of  destina- 
tion  is   admissible.] — 5 

COURSE  OF   BUSINESS. 

Where  a  letter  was  properly  stamped  and  mailed  and 
never  returned,  the  presumption  is  that  it  was  received. — 
Planters'  Mut.  Ins.  Ass'n  v.  Green,  72  Ark.  305,  80  S. 
W.  151;  Merchants'  Exch.  Co.  v.  Sanders,  74  Ark.  16, 
84  S.  W,  786;  Bluthenthal  v.  Atkinson,  93  Ark.  252,  124 
S.  W.  510;  Southern  Engine  &  Boiler  Works  v.  Vaughn, 
98  Ark.  388,  135  S.  W.  913;  St.  Vincent  Inst,  for  the  Insane 
v.  Davis,  129  Cal.  20,  61  P.  477  (statutory);  Smith  v.  Col- 
lis,  42  Mont.  350,  112  P.  1070;  McAuley  v.  Casualty  Co.  of 
America,  39  Mont.  185,  102  P.  586;  National  Masonic  Ace. 
Ass'n  v.  Burr,  57  Neb.  437,  77  N.  W.  1098;  Williams  v. 
Culver,  39  Or.  337,  64  P.  763  (statutory);  Lawver  v.  Globe 
Mut.  Ins.  Co.,  25  S.  D.  549,  127  N.  W.  615;  Pink  Front  Bank- 
rupt Store  v.  G.  A.  Mistrot  &  Co.,  40  Tex.  Civ.  App.  375, 
90  S.  W.  75;  Opet  v.  Danzer,  Goodhart  &  Snyder,  (Tex. 
Civ.  App.),  93  S.  W.  527;  State  Division,  Lone  Star  Ins. 
Union  v.  Blassengame,  (Tex.  Civ.  App.),  162  S.  W.  6; 
Ault  v.  Interstate  Sav.  &  Loan  Ass'n,  15  S.  W.  627,  43 
P.  13. 

It  must  be  shown  that  the  letter  was  addressed  and 
properly  deposited,  postage  prepaid. — Fountain  City  Drill 
Co.  v.  Lindquist.  22  S.  D.  7,  114  N.  W.  1098;  Trezevant  & 
Cochran  v.  R.  II.  Powell  &  Co.,  (Tex.  Civ.  App.),  130  S.  W. 
234. 

The  presumption  of  receipt  is  rebuttable. — Bluthenthal 
v.  Atkinson,  93  Ark.  252,  124  S.  W.  510;  City  of  Omaha  v. 
Yancey,  91  Neb.  261,  135  N.  \V.  L044;  Reeves  &  Co.  v.  Mar- 
tin, 20  Okl.  558,  94  P.  1058. 

4  Blake  v.  Albion  Life  Assurance  Society,  i>.  u.  i  C.  P. 
D.    94. 

5  [Texas  &  P.  Ry.  Co.  v.  Crowley,  (Tex,  Civ.  App.),  86  S. 
W.    342.) 


156  EXISTENCE  OF  COURSE  OF  BUSINESS 

A  similar  presumption  of  delivery  results  from  the  in- 
trusting to  a  telegraph  company  for  transmission  of  a 
message  properly  addressed  to  that  which  follows  from 
the  posting  of  a  letter  for  transmission  by  the  United 
States  mail.— Perry  v.  Bank,  53  Neb.  89,  73  N.  W.  538; 
Western  Twine  Co.  v.  Wright,  11  S.  D.  521,  78  N.  W.  942. 
United  States.  Evidence  of  a  letter,  containing  notice, 
having  been  put  into  the  postoffice,  directed  to  the  en- 
dorser, at  his  place  of  residence,  is  sufficient  proof  of  the 
notice  to  be  left  to  the  jury,  and  it  is  unnecessary  to  give 
notice  to  the  defendant  fo  produce  the  letter  before 
evidence  can  be  admitted. — Lindenberger  v.  Beall,  19  U.  S. 
(6  Wheat.)  104,  5  L.  Ed.  216. 

California.  As  evidence  that  a  business  was  conducted 
by  W.  ostensibly  for  himself  and  in  his  name,  'and  not 
for  or  in  the  name  of  another,  testimony  of  witnesses 
that  they  sold  goods  to  W.  in  his  own  name  was  relevant, 
together  with  their  bills  for  such  goods  to  show  that  they 
were  charged  to  W.  individually  and  not  to  defendant. — 
Kelly  v.  Murphy,  70  Cal.  560,  12  P.  467. 

The  fact  that  a  telegraph  message  was  duly  sent  is  ad- 
missible in  evidence,  and  tends  to  show  that  it  was  re- 
ceived.—Eppinger  v.  Scott,  112  Cal.  369,  44  P.  723. 

That  a  train  was  due  at  a  certain  place  at  a  certain  time 
is  relevant  to  prove  that  it  was  there  at  that  time. — 
People  v.  Wong  Chuey,  117  Cal.  624,  49  P.  833. 
Colorado.  A  promissory  note  payable  at  a  certain  bank  is 
shown  to  have  been  presented  at  the  bank  on  the  day  of 
its  maturity.  It  will  be  presumed,  the  contrary  not  ap- 
pearing, that  the  presentment  was  made  during  business 
hours.— Archuleta  v.  Johnston,  53  Colo.  393,  127  P.  134. 
Illinois.  In  a  suit  for  the  payr:  rut  of  an  alleged  debt,  evi- 
dence that  a  party  was  promi:':  in  payment  of  his  debts  is 
admissible. — Orr  v.  Jason,  1  111.  App.  439. 
Montana.  An  established  UFi^e  'or  custom  among  men 
engaged  in  the  same  employment  is  admissible  to  disprove 
the  doing  of  an  act  in  a  negligent  manner,  where  the  act 
of  the  party  charged  was  not  negligent  in  itself. — Pros- 
ser  v.  Montana  Cent.  Ry.  Co.,  17  Mont.  372,  43  P.  81. 

The  presumption  that  a  clerk  of  court  did  his  duty  and 
properly  dated  a  summons  is  disputable.— Gehlert  v. 
Quinn,  35  Mont.  451,  90  P.  168. 


EXISTENCE  OF  COURSE  OF  BUSINESS  157 

Nebraska.  A  public  officer  may  give  evidence  of  the  uni- 
form course  of  business  in  his  office,  for  the  purpose  of 
showing  the  performance  of  a  specific  official  act,  which  it 
was  his  duty  to  perform,  but  concerning  which  he  has  no 
independent  recollection.  (To  show  that  a  judgment  was 
indexed,  in  the  office  of  the  district  court,  on  the  day  the 
transcript  thereof  was  filed.) — Gate  City  Abstract  Co.  v. 
Post,  55  Neb.  742,  76  N.  W.  471. 

Texas.  Evidence  that  a  member  of  a  banking  firm,  who 
is  county  treasurer,  incorrectly  keeps  the  county  treas- 
urer's books,  does  not  tend  to  prove  that  an  employee  of 
the  firm  incorrectly  keeps  its  books. — Beeman  v.  Jester, 
62  Tex.  431. 

Evidence  of  the  habit  or  custom  or  performing  a  duty  is 
of  value  as  tending  to  show  that  the  duty  was  performed 
on  the  occasion  in  question.— Cane  Hill  Cold  Storage  & 
Orchard  Co.  v.  San  Antonio  &  A.  P.  Ry.  Co.,  (Tex.  Civ. 
App.),  95  S.  W.  751. 

The  fact  that  a  benefit  certificate  was  mailed  at  Sher- 
man, Tex.,  on  the  17th  of  June,  addressed  to  the  insured 
at  San  Antonio,  Tex.,  raises  a  presumption  that  it  was  re- 
ceived by  the  insured  before  the  death  of  the  insured  in 
San  Antonio  on  June  19th. — Eatman  v.  Eatman,  (Tex.  Civ. 
App.),  135  S.  W.  165. 

Utah.  A  notice  properly  addressed  and  stamped  and  de- 
livered into  the  mails  is  presumed  to  have  been  received. 
—Brown  v.  Fraternal  A.  Ass'n,  18  Utah  265,  55  P.   63. 

ACTIONS   AS   AGENT. 
Colorado.     The  authority  of  an  alleged   agent  cannot  be 
shown  by  proving  similar  transactions  between  the  agent 
and  other  parties. — Murphy  v.  Gumaer,  12  Colo.  App.  472, 
486,  55  P.  951. 

Nebraska.  The  existence  of  an  agency,  and  the  nature 
and  scope  of  his  powers,  may  be  proved  by  the  course  of 
dealing  between  the  persons  alleged  to  sustain  the  rela- 
tion of  principal  and  agent,  and  between  the  latter  with 
the  consent  of  the  former,  and  third  persons. — Standley  v. 
Clay,  Robinson  &  Co.,  68  Neb.  332,  94  N.  W.  140. 
Oregon.  An  agency  need  not  be  proved  by  direct  evi- 
dence, but  may  be  shown  by  circumstances  and  the  course 
of  the  dealing. — Co-operative  Copper  &  Gold  Mining  Co. 
v.  Law,  65  Or.  250,  132  P.  521. 


158  HEARSAY 

Texas.  Upon  the  question  as  to  whether  a  person  was 
the  agent  of  defendant  to  reserve  berths,  the  fact  is  ad- 
missible that  he  had  made  similar  reservations  with  the 
approval  of  the  company's  agents  in  charge  of  the  sleep- 
ing cars. — Pullman  Palace  Car  Co.  v.  Nelson,  22  Tex.  Civ. 
App.   223,  54   S.  W.  624. 

NOTE    VII. 
(To  Article  13.) 

As  to  presumptions  arising  from  the  course  of  office  or 
business,  see  Best,  s.  403;  1  Ph.  Ev.  480-484;  T.  E.,  s.  147. 
[1  Wigmore  Ev.,  §§  92-95.]  The  presumption,  "Omnia  esse 
rite  acta,"  also  applies.  See  Broom's  "Maxims,"  942;  Best, 
ss.  353-365;  T.  E.  s.  124,  &c;  1  Ph.  Ev.  480;  and  Star.  757,  763. 

CHAPTER  IV. 

HEARSAY  IRRELEVANT  EXCEPT  IN  CERTAIN  CASES 

Article  14.* 

hearsay  and  the  contents  of  documents  irrelevant. 

(a)  The  fact  that  a  statement  was  made  by 
a  person  not  called  as  a  witness,  and 

(b)  the  fact  that  a  statement  is  contained  or 
recorded  in  any  book,  document,  or  record  what- 
ever, proof  of  which  is  not  admissible  on  other 
grounds, 

are  respectively  deemed  to  be  irrelevant  to  the 
truth  of  the  matter  stated,  except  (as  regards 
(a))  in  the  cases  contained  in  the  first  section 
of  this  chapter; (a) 

and  except  (as  regards  (b) )  in  the  cases  con- 
tained in  the  second  section  of  this  chapter. 

(a)  It  is  important  to  observe  the  distinction  between  the 
principles  which  regulate  the  admissibility  of  the  statements 
contained  in  a  document  and  those  which  regulate  the  man- 
ner in  which  they  must  be  proved.  On  this  subject  see  the 
whole   of   Part   II. 


*  See  note  at  end  of  Article. 


HEARSAY  159 

Illustrations. 

(a)  A  declaration  by  a  deceased  attesting  witness  to  a  deed 
that  he  had  forged  it,  is  deemed  to  be  irrelevant  to  the  ques- 
tion of  its  validity. — 1 

(b)  The  question  is,  whether  A  was  born  at  a  certain  time 
and  place.  The  fact  that  a  public  body  for  a  public  purpose 
stated  that  he  was  born  at  that  time  and  place  is  deemed  to 
be  irrelevant,  the  circumstances  not  being  such  as  to  bring 
the  case  within  the  provisions  of  Article  34. — £ 

(c)  [The  question  is,  whether  plaintiff  had  destroyed  her 
own  property  by  fire. 

Testimony  as  to  a  conversation  of  plaintiff  with  a  third 
person  as  to  the  fire,  and  told  by  the  latter  to  witness,  is 
hearsay.] — 3 

HEARSAY    IN    GENERAL. 

"The  Hearsay  rule,  as  accepted  in  our  jurisprudence, 
signifies  a  rule  rejecting  assertions  offered  testimonially, 
which  have  not  been  in  some  way  subjected  to  the  test 
of  cross-examination." — 2  Wigmore   Ev.,   §    1362. 

Testimony  as  to  statements  of  a  third  person  not  made 
in  the  presence  of  the  party  are  inadmissible. — Lee-Clark- 
Andreesen  Hardware  Co.  v.  Yankee,  9  Colo.  App.  443,  48 
P.  1050;   Taylor  v.  Stockwell,  22  Wyo.  492,  145  P.  743. 

Letters,  books  and  other  writings,  not  coming  under 
some  exception  as  official  writings  and  the  like,  and,  of 
course,  statements  as  to  their  contents  derived  from  others 
is  inadmissible  as  hearsay: 

Arizona:  Matko  v.  Daley,  10  Ariz.  175*  85  P.  721  (receipts 
on  the  payrolls  of  n  mining  company,  purporting  to  be 
signed  by  two  certain  persons,  Inadmissible  to  show  that 
such  persons  had  worked  for  the  company  i. 
California:  Bailey  v.  Kreutzmann,  141  Cal.  519,  75  P.  104 
(recitals  as  to  the  contents  of  medical  works);  Donel- 
lan's  Estate,  In  re,  164  Cal.  14,  127  P.  166  (statements  of 
contents  of  letter  made  to  witness). 

Montana:  Stagg  &  Conrad  v.  St.  Jean,  29  Mont.  288,  74 
P.  740  (catalogue  issued  by  manufacturers  of  hot-air  plant. 
to  show  its  heating  capacity);    Columbian  State  Bank  v. 


l   Stobart    v.    Dryden,   1    M.  &  W.   615. 

J  Sturla  v.   Freccla,   L.   K.   5   App.  Cas.   623. 

8    [Chtinn    v.    London    &    Lancashire   Fire    Ins.    Co.,    115    Ark. 
555.    172    S.    W.    837.] 


160  HEARSAY 

Erb,  50  Mont.  442,  147  P.  617  (copy  of  memorandum  made 
by  another). 

North  Dakota:  Knight  v.  Willard,  26  N.  D.  140,  143  N.  W. 
346  (letter  from  chemist  as  to  result  of  analysis  made  by 
assistant). 

Texas:  Home  Investment  Co.  v.  Strange,  (Tex.  Civ.  App.), 
152  S.  W.  510  (letters  between  parties  having  no  connec- 
tion with  the  suit) ;  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Southern 
Kansas  Ry.  Co.,  (Tex.  Civ.  App.),  151  S.  W.  850  (contents 
of  letter  not  itself  admissible). 

Offers  of  sale  or  purchase  of  the  same  or  similar  land  in 
the  neighborhood,  or  of  an  article,  are  not  admissible  to 
fix  the  value.— Loloff  v.  Sterling,  31  Colo.  102,  71  P.  1113; 
Helena  Power  Transmission  Co.  v.  McLean,  38  Mont.  388, 
99  P.  1061;  Stewart  v.  James,  1  Neb.  (unof.)  507,  95  N. 
W.  778;  State  v.  Nevada  Cent.  R.  Co.,  28  Nev.  186,  81  P.  99; 
Truckee  River  General  Electric  Co.  v.  Durham,  38  Nev. 
311,  149  P.  61;  Jonesboro,  L.  C.  &  E.  R.  Co.  v.  Ashabranner, 
117  Ark.  317,  174  S.  W.  548;  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Alexander,  47  Wash.  131,  91  P.  626;  Chicago,  M..&  P.  S.  R. 
Co.  v.  True,  62  Wash.  646,  114  P.  515;  North  Coast  R.  Co.  v. 
Newman,  66  Wash.  374,  119  P.  823. 

Arkansas.  A  witness  cannot  testify  as  to  the  contents  of 
a  document  merely  from  having  heard  it  read. — Hooper  v. 
Chism,  13  Ark.  496. 

Statements  of  a  father  after  giving  possession  of  land 
to  his  son  that  the  land  still  belonged  to  him,  and  that 
he  had  merely  let  the  latter  have  it  during  the  father's 
lifetime  are  hearsay. — Strickland  v.  Strickland,  103  Ark. 
183,  146  S.  W.  501. 

Statements  made  by  an  injured  person  to  his  attending 
physician,  as  to  how  an  accident  happened  and  what 
caused  it,  are  not  admissible.- — St.  Louis,  I.  M.  &  S.  Ry. 
Co.  v.  Williams,  108  Ark.  387,  158  S.  W.  494. 

Statements  of  pain  and  suffering  merely  by  way  of 
narrative  are  purely  hearsay  and  inadmissible. — Prescott 
&  N.  W.  R.  Co.  v.  Thomas,   (Ark.),  167  S.  W.  487. 

Statements  by  plaintiff's  ancestor  as  to  the. value  of  a 
certain  piece  of  land  are  inadmissible. — St.  Louis,  I.  M.  & 
S.  Ry.  Co.  v.  Brundidge,  115  Ark.  606,  171  S.  W.  859. 

In  a  prosecution  for  larceny  it  is  not  hearsay  evidence 


HEARSAY  161 

for  defendant  to  prove  that  the  owner  of  the  alleged 
stolen  article  told  a  third  party  that  defendant  might  take 
the  property,  and  that  this  party  communicated  to  defend- 
ant what  the  owner  had  said. — Little  v.  State,  (Ark.), 
178  S.  W.  374. 

What  others  saw  and  told  witness  about  a  place  alleged 
to  be  dangerous,  is  no  evidence  of  its  dangerous  character. 
— Harrelson  v.  Eureka  Springs  Elec.  Co.,  (Ark.),  181  S. 
W.   922. 

California.  A  witness  cannot  testify  as  to  the  contents 
of  a  document  merely  from  having  heard  it  read. — Russell 
v.  Brosseau,  65  Cal.  605,  4  P.  643;  Guinasso,  In  re,  13  Cal. 
App.  518,   110  P.  335. 

A  witness  may  testify  as  to  his  age,  though  his  only 
source  of  knowledge  is  what  his  relatives  have  told  him. 
— Morrell  v.  Morgan,  65  Cal.  575,  4  P.  580. 

A  witness  who  can  neither  read  nor  write  cannot  tes- 
tify to  the  contents  of  a  written  instrument. — Russell  v. 
Brosseau,  65  Cal.  605,  4  P.  643. 

A  certificate  of  discharge  of  defendant  from  the  United 
States  army  for  disability,  which  also  certifies  his  char- 
acter to  be  good,  is  inadmissible. — People  v.  Eckman,  72 
Cal.  582,  14  P.  359. 

The  verdict  of  a  coroner's  jury  as  to  the  time  and  man- 
ner of  the  death  of  a  man  and  his  wife,  who  were  mur- 
dered on  the  same  occasion,  is  hearsay,  none  of  the  facts 
being  within  the  personal  knowledge  of  the  coroner  or 
any  juror.— Holllster  v.  Cordero,  76  Cal.  649,  18  P.  855. 

A  witness  cannot  testify  that  the  game  of  faro  was  be- 
ing played  when  it  appears  that  he  only  knew  that  it  was 
such  game  from  what  he  was  told  by  others  and  did  not 
know  the  game  himself. — People  v.  Gosset,  93  Cal.  641, 
29  P.  246. 

Certificates  of  one  who  assayed  ore  from  a  mine  are  not 
competent  to  prove  the  value  of  a  mine. — People  v. 
Whalen,  154  Cal.  472,  98  P.  194. 

The  exclusion  of  hearsay  evidence  is  based  on  the  fact 
that  every  litigant  who  comes  into  a  court  of  justice  has 
a  clear  right  to  have  the  witnesses  against  him  brought 
into  court  face  to  face,  so  that  he  may  be  tested  by  cross- 
examination   as   to   every   fact   concerning   which   he   has 


162  HEARSAY 

given  evidence. — San  Francisco  Teaming  Co.  v.  Gray,  11 
Cal.  App.  314,  104  P.  999. 

Witness  having  never  read  a  letter  he  cannot  testify 
to  its  contents. — In  re  Donnellan's  Estate,  164  Cal.  14,  127 
P.  166. 

Colorado.  Where  a  written  instrument  has  been  de- 
stroyed, a  witness  may  testify  as  to  its  contents  from  hav- 
ing heard  it  read. — Breen  v.  Richardson,  6  Colo.  605. 

Statements  made  in  a  conversation  between  third  per- 
sons are  not  admissible  in  evidence  against  a  party  who 
was  not  present. — Lee-Clark-Andreesen  Hardware  Co.  v. 
Yankee,  9  Colo.  App.  443,  48  P.  1050. 

Evidence  by  a  purchaser  of  property  claimed  to  have 
been  sold  in  fraud  of  creditors  as  to  what  someone  had 
told  him  about  an  attachment  of  the  same  is  inadmissible. 
—Kaufman  v.  Burchinell,  15  Colo.  App.  520,  63  P.  786. 

Testimony  of  a  physician  that  prior  to  the  time  deceased 
made  application  for  membership  in  defendant  society  he 
attended  deceased  as  a  physician  and  that  he  was  then 
suffering  from  a  certain  disease,  is  not  objectionable  as 
hearsay. — Head  Camp,  Pacific  Jurisdiction,  Woodmen  of 
the  World  v.  Loeher,  17  Colo.  App.  247,  68  P.  136. 

A  bystander  may  testify  to  a  telephone  conversation  be- 
tween the  parties  so  far  as  he  heard  it.— Kent  v.  Cobb,  24 
Colo.  App.  264,  133  P.  424. 

The  testimony  of  a  witness  that  one  K.  told  her  that  a 
certain  T.  asked  him  to  negotiate  a  settlement  of  a  claim 
is  hearsay.— Pulton  Inv.  Co.  v.  Smith,  27  Colo.  App.  279, 
149  P.  444. 

Kansas.  Declarations  of  a  party,  in  his  own  favor,  made 
to  the  opposite  party  are  admissible  only  for  the  purpose 
of  showing  that  at  the  time  such  declarations  were  made 
the  opposing  party,  by  words  or  conduct,  admitted  their 
truth.— Backus  v.  Clark,  1  Kan.  303. 

The  contents  of  books  or  pay  rolls  cannot  be  shown  by 
one  who  never  kept  the  same  and  has  no  recollection  of 
the  facts  independently  of  them. — Paola  Gas  Co.  v.  Paola 
Glass  Co.,  56  Kan.  614,  44  P.  621. 

Testimony  that  one  in  the  employ  of  defendant  was  en- 
deavoring to  improperly  influence  the  witness  cannot  be 


HEARSAY  163 

proved  by  a  conversation  at  which  defendant  was  not 
present. — McGuirk  v.  Johnson,  63  Kan.  884,  65  P.  654. 

Witnesses  receiving  for  examination  the  stomach  of  a 
man  killed  by  drinking  wood  alcohol,  together  with  re- 
maining liquor,  may  not  testify  that  they  were  informed 
by  the  persons  delivering  the  same  as  to  whence  it  had 
come.— Campbell  v.  Brown,  85  Kan.  527,  117  P.  1010. 

Declarations  of  a  physician,  consulted  by  a  patient,  are 
not  admissible  to  show  physical  condition. — Johnson  v. 
Powell,  87  Kan.  142,  123  P.  881. 

Montana.  Where  it  was  sought  to  introduce  secondary 
evidence  of  letters  alleged  to  have  been  destroyed,  witness 
cannot  testify  that  another  told  him  they  had  been  de- 
stroyed.—Colbert's  Estate,  In  re,  51  Mont.  455,  153  P.  1022. 
Nebraska.  Hearsay  testimony  which  is  incompetent  is 
not  made  admissible  by  reason  of  the  death  of  the  person 
who  made  the  statement  sought  to  be  proved. — Shold  v. 
Van  Treeck,  88  Neb.  80,  128  N.  W.  1134. 

Statements  by  plaintiff's  daughter  as  to  the  fact  of 
plaintiff's  having  used  her  arm  contrary  to  instructions 
of  defendant  are  hearsay. — Blakeslee  v.  Van  DerSlice, 
94  Neb.  153,  142  N.  W.  799. 

Nevada.  Defendant  may  not  have  witness  give  in  evidence 
a  conversation  between  her  and  witness  as  to  her  physical 
condition  on  a  certain  day,  it  being  hearsay. — Kennedy  v. 
Kennedy,  27  Nev.  152,  74  P.  7. 

Oklahoma.  A  witness  may  testify  as  to  his  or  her  own 
age.— Stevens  v.  Elliott,  30  Okl.  41,  118  P.  407. 

Statements  of  plaintiff's  minor  son  that  the  property 
in  question  belonged  to  plaintiff's  husband  are  hearsay. — 
Rauh  v.  Morris,  40  Okl.  288,  137  P.  1174. 

A  person  may  not  testify  as  to  the  age  of  his  brother 
from  what  his  folks  have  told  him,  when  the  question  at 
issue  is  not  one  of  pedigree. — Freeman  v.  First  Nat.  Bank 
of  Boynton,   44  Okl.   146,   143   P.  1165. 

A  section  foreman  cannot  be  permitted  to  testify  that 
certain  parties  had  told  him  that  defendant's  engine  had 
set  out  the  fire  which  burned  plaintiff's  meadow. — St. 
Louis  &  S.  F.  R.  Co.  v.  Murray,  (Okl.),  150  P.  884. 
Oregon.  Testimony  of  a  deputy  sheriff  that  he  did  not 
himself  turn  over  certain  property  to  a  trustee  in  bank- 


164  HEARSAY 

ruptcy,  but  that  the  records  of  his  office  showed  that  it 
was,  is  inadmissible  as  hearsay. — Goodnough  Mercantile 
Co.  v.  Galloway,  48  Or.  239,  84  P.  1049. 

Common  rumor,  cards  and  newspaper  items  are  inad- 
missible to  prove  a  partnership. — Gettins  v.  Hennessey, 
60  Or.  566,  120  P.  369. 

An  affidavit  of  plaintiff  to  the  effect  that  he  had  in  his 
possession  the  affidavits  of  three  men  that  certain  assess- 
ment work  had  not  been  done  is  hearsay. — Anderson  v. 
Robinson,  63  Or.  228,  127  P.  546. 

Pictures  and  statement  in  a  newspaper,  purporting  to 
represent  the  graduating  class  of  a  college,  are  inadmis- 
sible in  an  action  by  one  represented  therein  to  compel 
the  college  to  award  a  diploma  to  him. — Tate  v.  Northern 
Pac.  College,  70  Or.   160,  140  P.  743. 

South  Dakota.  The  "talk  and  conversation  of  the  fam- 
ily," that  the  son  was  the  owner  of  certain  personal  prop- 
perty  is  inadmissible  as  hearsay. — Stevens  v.  William 
Deering  &  Co.,  6  S.  D.  200,  60  N.  W.  739. 

Texas.  A  witness  cannot  testify  as  to  the  contents  of  a 
document  merely  from  having  heard  it  read. — Mutual  Life 
Ins.  Co.  v.  Tillman,  84  Tex.  31,  19  S.  W.  294. 

Hearsay  evidence  is  not  admissible  to  corroborate  wit- 
nesses.— Newton  v.  Alexander,  (Tex.  Civ.  App.),  44  S. 
W.  416. 

Telegraphic  correspondence  between  employees  of  a 
company  is  hearsay.— Pecos  &  N.  T.  Ry.  v.  Evans  &  Co., 
42  Tex.  Civ.  App.  60,  93  S.  W.  1024. 

It  is  error  to  permit  a  witness  to  testify  that  a  party 
was,  by  others,  identified  as  the  same  party  witness  had 
subsequently  seen.— Ripley  v.  State,  51  Tex.  Cr.  R.  126, 
100  S.  W.  943. 

Letters  of  a  third  person  to  defendant  are  inadmissible. 
—Taylor  v.  McFatter,  (Tex.  Civ.  App.),  109  S.  W.  395. 

Statements  of  a  person  to  witness  as  to  the  description 
of  land  in  a  lost  deed  are  inadmissible. — Rice  v.  Talia- 
ferro, (Tex.  Civ.  App.),  156  S.  W.  242. 

Testimony  of  the  sender  of  a  telegram,  that  the  oper- 
ator had  called  him  up  by  telephone  and  stated  that  he 
had  followed  the  sender's  directions  in  transmitting  the 


HEARSAY  165 

message,  is  hearsay. — Western  Union  Telegraph  Co.  v. 
Ray,  (Tex.  Civ.  App.),  147  S.  W.  1194. 

Statement  of  a  witness  at  an  inquest  is  hearsay  when 
attempted  to  be  used  at  the  trial  of  an  action  for  the  death. 
—Texas  Cent.  R.  Co.  v.  Dumas,  (Tex.  Civ.  App.),  149  S.  W. 
543. 

Death  may  be  proved  by  hearsay,  after  the  lapse  of 
long  time.— McDoel  v.  Jordan,  (Tex.  Civ.  App.),  151  S. 
W.  1178. 

Ex  parte  affidavits  are  inadmissible. — Magee  v.  Paul, 
(Tex.  Civ.  App.),  159  S.  W.  325;  Rude  v.  Richards,  (Tex. 
Civ.  App.),  159  S.  W.  386. 

Letters  from  commission  merchants  are  not  admissible 
to  show  market  value. — Houston  Packing  Co.  v.  Griffith, 
(Tex.  Civ.  App.),  164  S.  W.  431. 

What  a  physician  told  plaintiff  with  reference  to  the 
advisability  of  an  operation,  and  what  would  be  the  re- 
sult if  he  did  not  have  it  performed,  is  inadmissible. — 
Texas  Power  &  Light  Co.  v.  Burger,  (Tex.  Civ.  App.),  166 
S.    W.    680. 

Testimony  that  a  surveyor  told  parties  he  was  survey- 
ing for,  that  a  certain  mound  was  a  corner,  is  hearsay. — 
McSpadden  v.  Vannerson,  (Tex.  Civ.  App.),  169  S.  W.  1079. 
Utah.  IJ  is  not  proper  to  ask  a  witness  to  state  a  con- 
versation between  third  parties  in  the  absence  of  re- 
spondent, where  it  is  sought  to  bind  respondent  by  the 
conversation.— Van  Pelt  v.  Park,  18  Utah  141,  55  P.  381. 

Declarations  of  third  persons  are  inadmissible  as  hear- 
say, when  it  does  not  appear  that  they  were  a  part  of 
the  res  gestae,  or  were  made  in  the  presence  of  the  party 
sought  to  be  charged,  and  acquiesced  in  by  him. — Jensen 
v    McCormick.  20  Utah  355,  58  P.  834. 

Declarations  of  the  herder  of  trespassing  sheep  and  cat- 
tle that  they  belonged  to  defendant  for  whom  he  was  work- 
ing, were  not  admissible  as  showing  the  nature  of  his  pos- 
session, as  they  did  not  show  possession  in  him  but  In 
another.— Surbaugh  v.  Butterfield,  44  Utah  446,  140  P. 
757. 

Washington.  Witnesses  cannot  testify  as  to  what  an  al- 
leged agent  told  them  his  principal  concluded  to  do  in  re- 
spect to  a  certain  matter. — Gregory  v.  Loose,  19  Wash. 
599.  54  P.  33. 


166  HEARSAY 

A  letter  written  by  plaintiff's  counsel  to  defendant  after 
the  latter's  refusal  to  accept  certain  goods,  setting  out 
plaintiff's  view  of  the  transaction,  is  inadmissible. — Moritz 
v.  Herskovitz,  46  Wash.  192,  89  P.  560. 

An  offer  of  a  price  for  property  made  in  good  faith  and 
rejected  by  the  owner  is  competent  evidence  of  value. — 
German-American  State  Bank  v.  Spokane-Columbia  River 
R.  &  Nav.  Co.,  49  Wash.  359,  95  P.  261. 

A  witness  may  testify  that  his  mother  was  a  full-blooded 
Indian  and  that  his  father  was  a  Portuguese. — State  v. 
Rackich,  66  Wash.  390,  119  P.  843. 

A  witness  may  testify  as  to  the  ages  of  the  other  mem- 
bers of  his  family.— State  v.  Rackich,  66  Wash.  390,  119 
P.  843. 

Wyoming.  One  who  has  no  personal  knowledge  of  the 
amount  of  earnings  of  plaintiff  at  a  place  where  he  was 
employed  cannot  testify  as  to  amounts  so  earned  by  read- 
ing from  pay  rolls  which  he  did  not  prepare. — Acme 
Cement  Plaster  Co.  v.  Westman,  20  Wyo.  143,  122  P.  89. 
REPUTATION. 

Rumors,  reputation  and  the  like,  unless  coming  under 
one  of  the  exceptions  treated  in  Chapter  IV,  are  ordi- 
narily inadmissible  as  hearsay. 

California:  Shepherd  v.  Turner,  129  Cal.  530,  #62  P.  106 
(general  repute  as  a  highway). 

Idaho:  Miller  v.  Village  of  Mullan,  17  Ida.  28,  104  P.  660 
(rumors  as  to  condition  of  sidewalk). 

Kansas:  Blue  v.  Peter,  40  Kan.  701,  20  P.  442  (rumors 
that  certain  persons  who  had  been  resident  electors  had 
moved  away). 

Nebraska:  Hinckley  v.  Jewett,  86  Neb.  464,  125  N.  W. 
1086  (general  understanding  in  the  community  as  to  con- 
tract to   marry). 

Oregon:  Gettins  v.  Hennessey,  60  Or.  566,  120  P.  369 
(rumors  as  to  members  of  a  partnership) ;  Spande  v. 
Western  Life  Ins.  Co.,  61  Or.  220,  117  P.  973  (understand- 
ing of  witness  that  another  was  held  out  as  agent). 
Texas:  McLane  v.  Elder,  (Tex.  Civ.  App.),  23  S.  W.  757 
(reputation  of  insanity) ;  First  Nat.  Bank  v.  McGinty,  29 
Tex.  Civ.  App.  539,  69  S.  W.  495  (same);  Home  Circle 
Soc.  No.  1  v.  Shelton,  (Tex.  Civ.  App.),  81  S.  W.  84  (repu- 
tation of  health  of  insured  at  time  of  application) ;   Knox 


HEARSAY  167 

v.  Robbins,  (Tex.  Civ.  App.),  151  S.  W.  1134  (reputation  of 

insanity). 

Montana.     Evidence  as  to  the  general  reputation  of  a  wife 

as  being  the  owner  of  certain  sheep  is  hearsay. — Finch  v. 

Kent,  24  Mont.  268,  61  P.  653. 

Texas.     General  reputation  that  a  certain  person  was  a 

white  woman  is  admissible. — Stewart  v.  Profit,   (Tex.  Civ. 

App.),  146  S.  W.  563. 

Testimony  of  witnesses  as  to  the  result  of  inquiries  about 
the  death  or  whereabouts  of  a  certain  person,  made  in  the 
county  where  he  once  lived,  is  inadmissible. — Wells  v. 
Margraves,  (Tex.  Civ.  App.),  164  S.  W.  881. 

note  vm. 

(To   Article    14.) 

The  unsatisfactory  character  of  the  definitions  usually 
given  of  hearsay  is  well  known.  See  Best,  s.  495;  T.  E.  ss. 
507-510.  [2  Wigmore  Ev.,  §  1360  et  seq.]  The  definition 
given  by  Mr.  Phillips  sufficiently  exemplifies  it:  "When  a  wit- 
ness, in  the  course  of  stating  what  has  come  under  the  cog- 
nizance of  his  own  senses  concerning  a  matter  in  dispute, 
states  the  language  of  others  which  he  has  heard,  or  pro- 
duces papers  which  he  identifies  as  being  written  by  particu- 
lar individuals,  he  offers  what  is  called  hearsay  evidence. 
This  matter  may  sometimes  be  the  very  matter  in  dispute," 
&c.  (1  Ph.  Ev.  143).  If  this  definition  is  correct,  the  maxim, 
"Hearsay  is  no  evidence,"  can  only  be  saved  from  the  charge 
of  falsehood  by  exceptions  which  make  nonsense  of  it.  By 
attaching  to  it  the  meaning  given  in  the  text,  it  becomes 
both  intelligible  and  true.  There  is  no  real  difference  be- 
tween the  fact  that  a  man  was  heard  to  say  this  or  that, 
and  any  other  fact.  "Words  spoken  may  convey  a  threat, 
supply  the  motive  for  a  crime,  constitute  a  contract,  amount 
to  slander,  &c,  &c,  and  if  relevant  or  in  issue,  on  these  or 
other  grounds,  they  must  be  proved,  like  other  facts,  by  the 
oath  of  someone  who  heard  them.  The  important  point  to 
remember  about  them  is  that  bare  assertion  must  not,  gen- 
erally speaking,  be  regarded  as  relevant  to  the  truth  of  the 
matter    asesrted. 

The  doctrine  of  hearsay  evidence  was  fully  discussed  by 
many  of  the  judges  in  the  case  of  Doe  d.  Wright  v.  Tatham 
on  the  different  occasions  when  that  case  came  before  the 
court  (see  7  A.  &  E.  313-408;  4  Bing.  N.  C.  489-573).  The 
question  was,  whether  letters  addressed  to  a  deceased  tes- 
tator, implying  that  the  writers  thought  him  sane,  but  not 
acted  upon  by  him,  could  be  regarded  as  relevant  to  his  san- 
ity, Which  was  the  point  in  issue.  The  case  sets  the  strin- 
gency of  the  rule  against  hearsay  in  a  light  which  is  forcibly 
illustrated  by  a  passage  in  the  judgment  of  Baron  Parke  (7 
A.  &  E.  385-388),  to  the  following  effect:  He  treats  the  letters 


168  ADMISSIONS  DEFINED 

as  "statements  of  the  writers,  not  on  oath,  of  the  truth  of 
the  matter  in  question,  with  this  addition,  that  they  have 
acted  upon  the  statements  on  the  faith  of  their  being  true  by 
their  sending  the  letters  to  the  testator."  He  then  goes 
through  a  variety  of  illustrations  which  had  been  suggested 
in  argument,  and  shows  that  in  no  case  ought  such  state- 
ments to  be  regarded  as  relevant  to  the  truth  of  the  matter 
stated,  even  when  the  circumstances  were  such  as  to  give 
the  strongest  possible  guarantee  that  such  statements  ex- 
pressed the  honest  opinions  of  the  persons  who  made  them. 
Amongst  others  he  mentions  the  following:  "The  conduct  of 
the  family  or  relations  of  a  testator  taking  the  same  pre- 
cautions in  his  absence  as  if  he  were  a  lunatic — his  election 
in  his  absence  to  some  high  and  responsible  office;  the  corm 
duct  of  a  physician  who  permitted  a  will  to  be  executed 
by  a  sick  testator;  the  conduct  of  a  deceased  captain  on  a 
question  of  seaworthiness,  who,  after  examining  every  part 
of  a  vessel,  embarked  in  it  with  his  family;  all  these,  when 
deliberately  considered,  are,  with  reference  to  the  matter  in 
issue  in  each  case,  mere  instances  of  hearsay  evidence — mere 
statements,  not  on  oath,  but  implied  in  or  vouched  by  the 
actual  conduct  of  persons  by  whose  acts  the  litigant  parties 
are  not  to  be  bound."  All  these  matters  are  therefore  to  be 
treated  as  irrelevant  to  the  questions  at  issue. 

These  observations  make  the  rule  quite  distinct,  but  the 
reason  suggested  for  it  in  the  concluding  words  of  the  pas- 
sage extracted  appears  to  be  weak.  That  passage  implies 
that  hearsay  is  excluded  because  no  one  "ought  to  be  bound 
by  the  act  of  a  stranger."  That  no  one  shall  have  power  to 
make  a  contract  for  another  or  commit  a  crime  for  which  that 
other  is  to  be  responsible  without  his  authority  is  obviously 
reasonable,  but  it  is  not  so  plain  why  A's  conduct  should  not 
furnish  good  grounds  for  inference  as  to  B's  conduct,  though 
it  was  not  authorized  by  B.  The  importance  of  shortening 
proceedings,  the  importance  of  compelling  people  to  procure 
the  best  evidence  they  can,  and  the  importance  of  excluding 
opportunities  of  fraud,  are  considerations  which  probably 
justify  the  rule  excluding  hearsay;  but  Baron  Parke's  illus- 
trations of  its  operation  clearly  prove  that  in  some  cases  it 
excludes  the  proof  of  matter  which,  but  for  it,  would  be  re- 
garded not  only  as  relevant  to  particular  facts,  but  as  good 
grounds   for   believing   in   their   existence. 

SECTION  I. 

HEARSAY,  WHEN  RELEVANT. 

Article  15.* 

admissions  defined. 

An  admission  is  a  statement  oral  or  written, 


*  See  Note  at  end  of  Article. 


ADMISSIONS  DEFINED  169 

suggesting  any  inference  as  to  any  fact  in  issue 
or  relevant  or  deemed  to  be  relevant  to  any  such 
fact,  made  by  or  on  behalf  of  any  party  to  any 
proceeding.  Every  admission  is  (subject  to  the 
rules  hereinafter  stated)  deemed  to  be  a  relevant 
fact  as  against  the  person  by  or  on  whose  behalf 
it  is  made,  but  not  in  his  favor  unless  it  is  or  is 
deemed  to  be  relevant  for  some  other  reason. 

ADMISSIONS    IN    GENERAL. 

Arkansas.  In  an  action  by  a  passenger  for  injuries,  the 
fact  that  doctors  rendered  bills  to  plaintiff  and  that  he 
acquiesced  in  the  amounts  tends  to  establish  that  he  was 
indebted  to  such  doctors,  and  the  amounts. — St.  Louis,  I. 
M.  &  S.  Ry.  Co.  v.  Hydrick,  109  Ark.  231,  160  S.  W.  196. 

Admissions  are  evidence  against  a  party,  but  he  cannot 
annul  or  explain  them  away  by  counter  declarations. — 
Hazen  v.  Henry,  6  Ark.  86;  Nutter  v.  O'Donnell,  6  Colo. 
253. 

California.  The  fact  that  admissions  were  made  through 
an  interpreter  does  not  affect  their  admissibility. — Kelly 
v.  Ning  Yung  Benev.  Ass'n,  2  Cal.  App.  460,  84  P.  321. 

That  injury  resulted  from  plaintiff's  own  fault,  admis- 
sible.—Rudd  v.  Byrnes,   156  Cal.  636,   105  P.  957. 

Statements  by  the  sole  executor  and  beneficiary  under 
a  will  are  admissible. — Ricks  Est.,  In  re,  160  Cal.  467,  117 
P.  539. 

Declarations  against  the  validity  of  a  will  made  by  a 
residuary  legatee  charged  with  procuring  its  execution  by 
undue  influence,  are  admissible. — Purcell's  Est.,  In  re,  164 
Cal.  300,  128  P.  932. 

Statement  as  to  going  about  fifteen  miles  an  hour  and 
failure  to  blow  a  horn,  admissible. — Scragg  v.  Sallee.  24 
Cal.  App.  133,  140  P.  706. 

Colorado.  Defendant's  failure  to  reply  to  a  letter  written 
by  a  third  person,  Btating  that  defendant  had  agreed  to 
assume  the  debts  of  a  firm,  is  not  relevant. — Lee-Clark- 
Andreesen  Hardware  Co.  v.  Yankee,  9  Colo.  App.  443,  48 
P.  1050. 


170  ADMISSIONS  DEFINED 

Evidence  of  admissions  tending  to  impeach  plaintiff's 
claim  that  the  note  sued  on  belonged  to  a  trust  fund,  is 
admissible. — Bottom  v.  Barton,  12  Colo.  App.  53,  54  P. 
1031. 

In  order  to  render  his  account  books  admissible  to  show 
admissions  against  the  party  making  them,  it  is  only 
necessary  that  they  be  shown  to  be  his  books,  kept  in 
the  regular  course  of  business  and  that  the  entries  were 
made  by  himself  or  an  agent  authorized  to  make  them. — ■ 
Zang  v.  Wyant,  25  Colo.  551,  56  P.  565. 

The  fact  that  defendant  had  settled  for  cattle  killed  by 
its  train  at  the  same  time  is  admissible. — Chicago,  R.  I. 
&  P.  Ry.  Co.  v.  Rhodes,  21  Colo.  App.  229,  121  P.  769. 
Idaho.  Proofs  of  death  furnished  by  beneficiary  admis- 
sible when  offered  by  insurer. — Raiscot  v.  Royal  Neighbors 
of  America,  18  Idaho  85,  108  P.  1048. 

Kansas.  The  declarations  of  a  party  to  the  record  are 
as  against  him  admissible  in  evidence. — Greer  v.  Higgins, 
8  Kan.  519. 

Montana.  The  fact  that  a  lease  and  option  to  purchase  a 
placer  claim  was  made,  amounts  to  a  declaration  by  all 
parties  thereto  that  the  lessors  owned  the  claim,  and  that 
the  lessee  did  not.— Kift  v.  Mason,  42  Mont.  232,  112  P. 
392. 

The  fact  that  insured  had  violated  his  contract  by  en- 
gaging in  a  prohibited  undertaking  may  be  shown  by  the 
introduction  of  proofs  of  death. — Schwanekamp  v.  Modern 
Woodmen  of  America,  44  Mont.  526,  120  P.  806. 
Nebraska.  In  an  action  for  the  price  of  a  machine  state- 
ments of  one  of  the  plaintiffs  as  to  the  work  it  would  do, 
its  quality,  and  the  nature  of  plaintiff's  obligation  in  refer- 
ence to  it,  are  admissible.— Carlson  &  Hanson  v.  Holm,  2 
Neb.    (unof.)   38,  95  N.  W.   1125. 

Admissions  made  to  third  persons  may  be  shown. — Al- 
len v.  Hall,  64  Neb.  256,  89  N.  W.  803. 

Statements  of  a  party  to  a  suit,  to  a  third  person,  may 
be  received  in  evidence  against  him,  and  are  not  open  to 
the  objection  that  they  are  hearsay  evidence. — Allen  v. 
Hall,  64  Neb.  256,  89  N.  W.  803. 

Nevada.  Every  prior  statement  of  a  party  to  an  accident 
exhibiting  any  inconsistency  with  his  present  claim  or 
theory  upon  which  he  presumes  to  maintain  his  case  is 


ADMISSIONS  DEFINED  .    171 

admissible  as  tending  to  throw  doubt  upon  it  regardless  of 
whether,  at  the  time  he  was  speaking,  he  made  the  utter- 
ances in  his  own  favor,  or  against  his  own  interest. — 
Peterson  v.  Pittsburg  Silver  Peak  Gold  Mining  Co.,  37 
Nev.  117,  140  P.  519. 

New  Mexico.  Statements  of  ownership  of  property,  made 
in  a  bond  to  release  the  same  from  attachment,  are  admis- 
sible.— Southern  Car  Mfg.  &  Supply  Co.  v.  Wagner,  14  N. 
M.   195,   89   P.   259. 

North  Dakota.  The  fact  that  a  person  pleaded  guilty  of 
assault  before  a  justice,  is  admissible  on  a  subsequent 
trial  for  the  same  offense  although  there  were  defects  In 
the  complaint  before  the  justice. — Satham  v.  Muffle,  23 
N.  D.  63,  135  N.  W.  797. 

An  admission  contained  in  defendant's  answer  in  a  for- 
mer suit  of  the  amount  owing  by  him  to  plaintiff,  and  a 
tender  of  such  sum,  though  afterwards  withdrawn,  is  com- 
petent testimony  in  plaintiff's  behalf. — Horton  v.  Emerson, 
30  N.  D.  258,  152  N.  W.  529. 

Oklahoma.  A  statement  signed  by  the  parties  in  settle- 
ment of  items  of  account  is  admissible. — Miller  v.  Camp- 
bell Commission  Co.,  13  Okl.  75,  74  P.  507. 

Assessment  lists  handed  in  by  taxpayer  are  admissible 
on  the  question  of  value  of  horses.— BartlesvUJe  Inter- 
urban  Ry.  Co.  v.  Quaid,  (Okl.),  151  P.  891. 
Oregon.  In  an  action  for  loss  of  a  money  packaeg  by  an 
express  company,  a  circular  notice  of  defendant  differing 
a  reward  for  return  of  the  package  is  competent  evidence 
as  an  admission  that  defendant  was  liable  for  loss  of  the 
money. — Bennett  v.  Northern  Pac.  Exp.  Co.,  12  Or.  49, 
6  P.  171. 

It  may  be  shown  as  an  admission  of  liability  for  negli- 
gence that  defendant  has  settled  with  others  in  the  same 
position  as  plaintiff. — Weiss  v.  Kohlhagen,  58  Or.  144, 
113  P.  46. 

Admission  of  one  of  defendants  that  he  was  a  member 
of  the  firm  for  which  plaintiff  was  working  is  admissible 
as  tending  to  establish  the  relation  of  master  and  serv- 
ant.—Dibert  v.  Giebisch,  74  Or.  64,  144  P.  1184. 
South  Dakota.  Statements  of  defendant  made  prior  to  a 
purchase  of  land  by  plaintiff,  that  he  had  no  interest  there- 


172  ADMISSIONS  DEFINED 

in  are  admissible. — Bliss  v.  Waterbury,  33  S.  D.  214,  145 
N.  W.   435. 

Statements  of  plaintiff  that  if  he  had  retained  hold  of 
the  automobile  wheel  while  going  over  a  crossing  the 
accident  would  not  have  happened. — Hauff  &  Stormo  v. 
South  Dakota  Cent.  Ry.  Co.,  34  S.  D.  183,  147  N.  W.  986. 
Texas.  Evidence  of  admissions  of  a  shortage  made  by  a 
county  treasurer  after  his  term  of  office  had  expired  is 
admissible  against  him,  but  not  against  his  sureties,  in 
an  action  upon  his  bond. — McParlane  v.  Howell,  16  Tex. 
Civ.  App.  246,  43  S.  W.  315. 

Original  assessment  lists  admissible  against  the  party 
making  them. — Jones  v.  Cummins,  17  Tex.  Civ.  App.  661, 
43  S.  W.  854. 

Statements  as  to  the  location  of  a  corner  of  a  survey 
made  by  defendant  before  he  had  acquired  an  interest 
therein  are  inadmissible.— Bell  v.  Preston,  19  Tex.  Civ. 
App.  375,  47  S.  W.  375. 

A  folder  put  out  by  a  railroad  company  tending  to  show 
that  it  had  an  agent  in  a  certain  county  admissible  to 
refute  claim  that  it  had  no  such  agent. — Southern  Pac. 
Co.  v.  Allen,  48  Tex.  Civ.  App.  66,  106  S.  W.  441. 

Evidence  given  by  a  party  on  a  former  trial  may  be 
used  as  an  admission. — Littler  v.  Dielmann,  48  Tex.  Civ. 
App.  392,  106  S.  W.  1137. 

A  folder  published  by  defendant  railroad  companies  ad- 
mitted in  evidence  as  tending  to  show  that  they  belonged 
to  the  same  system. — Pecos  &  N.  T.  Ry.  Co.  v.  Cox,  (Tex. 
Civ.  App.),  150  S.  W.  265. 

Attorneys,  assigned  a  one-half  interest  in  a  negligence 
case,  may  show,  as  an  admission  of  negligence,  that  de- 
fendant had  made  a  compromise  with  their  assignor. — 
St.  Louis,  S.  F.  &  T.  Ry.  Co.  v.  Thomas,  (Tex.  Civ.  App.), 
107    S.    W.    784. 

Substitution  of  a  different  kind  of  a  cattle  guard  at 
another  crossing  after  plaintiff's  mule  was  injured,  ad- 
missible.—Stephenville  N.  &  St.  Ry.  Co.  v.  Schrank,  (Tex. 
Civ.   App.),   175   S.   W.   471. 

Utah.  The  admissions  of  a  sole  legatee  may  be  shown 
against  him.— Miller's  Estate,  In  re,  31  Utah  415,  88  P.  338. 
Washington.     Declarations  of  a  party  to  the  record  against 


ADMISSIONS  DEFINED  173 

himself  are  admissible  as  independent  evidence  in  chief. 
—Hart  v.  Pratt,  19  Wash.  560,  53  P.  711. 
JUDICIAL   ADMISSIONS. 
In  General. 

A  plea  of  guilty  on  a  criminal  prosecution  is  admissible 
in  another  action  involving  the  same  facts,  but  is  not 
conclusive. — Wesnieski  v.  Vanek,  5  Neb.  (Unof.)  512,  99 
N.  W.  258;  Meyers  v.  Dillon,  39  Or.  581,  65  P.  867. 
California.  A  stipulation  admitting  the  truth  of  certain 
facts  "upon  the  trial  of  the  above  entitled  action"  is  ad- 
missible upon  a  new  trial  after  reversal  on  appeal. — 
Nathan  v.  Dierssen,  146  Cal.  63,  79  P.  739. 

A  verified  statement  of  a  claim  against  an  estate  may 
be  used  as  an  admission. — Pollitz  v.  Wickersham,  150 
Cal.  238,  88  P.  911. 

Colorado.  Matters  of  fact  knowingly  and  intentionally 
admitted  in  the  pleadings  cannot  afterwards  be  contra- 
dicted in  the  same  case.  The  admission  concludes  the 
party,  even  though  the  jury  find  contrary  to  what  is  so 
confessed.  (Amount  admitted  due,  and  offer  to  pay 
same.)— Harvey  v.  Denver  &  Rio  G.  R.  Co.,  56  Colo.  570, 
139  P.  1098. 

Kansas.  The  general  admission  of  a  fact  made  by  an  at- 
torney in  his  opening  address  may  be  used  as  an  admis- 
sion upon  a  second  trial. — Missouri  &  K.  Telephone  Co. 
v.  Vandevort,  67  Kan.  269,  72  P.  771. 

Nebraska.  A  plea  of  guilty  entered  by  a  defendant  in  a 
criminal  case  may  be  used  against  him  in  another  action 
involving  the  same  facts,  as  an  admission  on  his  part 
that  he  committed  the  acts  charged  in  the  criminal  action, 
but  such  admission  is  not  conclusive  and  may  be  contro- 
verted in  the  second  action.— Wesnieski  v.  Vanek,  5  Neb. 
(Unof.)  512,  99  N.  W.  258. 

Nevada.  Admission  by  attorney  in  presence  of  plaintiffs, 
in  a  previous  criminal  prosecution,  that  certain  lumber 
belonged  to  defendants,  admissible. — Mirodias  v.  Southern 
Pac.  Co.,  38  Nev.  119,  145  P.  912. 

Oklahoma.  Solemn  or  judicial  admissions,  made  for  the 
express  purpose  of  dispensing  with  the  proof  of  some  fact 
at  the  trial,  in  the  form  of  express  stipulations,  on  being 
filed  and  becoming  part  of  the  record  are  generally  con- 
clusive of  all  the  facts  involved,  and  may  be  given  in  evi- 


174  ADMISSIONS  DEFINED 

dence  on  any  subsequent  trial  of  the  same  cause.  (Agreed 
statements  of  facts.) — Consolidated  Steel  &  Wire  Co.  v. 
Burnham,  8  Okl.  514,  58  P.  654. 

A  statement  as  to  what  an  absent  witness  will  testify, 
when  set  out  in  a  motion  for  continuance,  may  be  used  in 
evidence,  where  to  prevent  continuance,  the  opposite  party 
admits  that  the  opposite  party  would  so  testify. — Grimes 
v.  Wilson,  30  Okl.  322,  120  P.  294. 

An  affidavit  in  replevin  may  be  used  in  another  action 
as  an  admission  of  the  property  therein  described. — 
Stiller  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  34  Okl.  45,  124  P. 
595. 

Texas.  The  deposit  of  money  by  defendant  in  a  justice 
court  is  an  admission  of  indebtedness  to  that  amount  that 
may  be  used  as  evidence  against  him  on  appeal. — Low  v. 
Griffin,   (Tex.  Civ.  App.),  41  S.  W.  73. 

That  defendant  pleaded  guilty  to  a  charge  of  assault 
and  battery  before  a  justice  of  the  peace  is  admissible 
on  a  subsequent  trial  for  damages. — Sumner  v.  Kinney, 
(Tex.  Civ.  App.),  136  S.  W.  1192. 

The  fact  that  a  person  alleged  to  be  a  partner  In  the 
pleadings  of  an  action  suffered  a  default  therein  may  be 
used  as  an  admission  that  he  was  such  partner. — Miller  v. 
Laughlin,  (Tex.  Civ.  App.),  147  S.  W.  711. 
Admissions  In  Pleadings. 
Admissions  made  in  pleadings  will  bind  the  party  in 
the  suit  in  which  they  are  filed,  though  they  have  been 
stricken  out,  amended  or  withdrawn. — Barton  v.  Laws,  4 
Colo.  App.  212,  35  P.  284;  Shurtliff  v.  Extension  Ditch  Co., 
14  Ida.  416,  94  P.  574;  Reemsnyder  v.  Reemsnyder,  75  Kan. 
565,  89  P.  1014;  Arkansas  City  v.  Payne,  80  Kan.  353,  102 
P.  781;  Elliff  v.  Oregon  R.  &  Nav.  Co.,  53  Or.  66,  99  P. 
76;  Sayre  v.  Mohney,  35  Or.  141,  56  P.  526.  Contra,  Miles 
v.  Woodward,  115  Cal.  308,  46  P.  1076;  Ruddock  Co.  v. 
Johnson,  135  Cal.  xix,  67  P.  680. 

Statements  made  in  a  pleading  in  another  action  are 
admissible  against  the  one  who  made  them. — Valley  Plant- 
ing Co.  v.  Wise,  93  Ark.  1,  123  S.  W.  768;  Every  v.  Rains, 
84  Kan.  560,  115  P.  114;  Myers  v.  First  Presbyterian 
Church,  11  Okl.  544,  69  P.  874;  Feldman  v.  McGuire,  34 
Or.  309,  55  P.  872;  Johnson  v.  Hawthorne  Ditch  Co.,  32 
S.  D.  499,  143  N.  W.  959. 


ADMISSIONS  DEFINED  175 

Admissions  made  in  an  abandoned  pleading  are  not 
conclusive. — Barton  v.  Laws,  4  Colo.  App.  212,  35  P.  284; 
Bowes  v.  Cannon,  50  Colo.  262,  116  P.  336;  Johnson  v. 
Sheridan  Lumber  Co.,  51  Or.  35,  93  P.  470. 
Kansas.  While  an  abandoned  pleading  no  longer  serves 
to  define  the  issues,  it  has  some  evidentiary  force  in  the 
nature  of  an  admission  on  the  part  of  the  pleader,  and 
should  be  received  in  evidence  for  what  it  is  worth. — 
Watt  v.  Missouri,  K.  &  T.  Ry.  Co.,  82  Kan.  458,  108  P.  811. 
Nebraska.  Admissions  made  by  a  litigant  in  his  pleading 
in  a  suit  are  competent  evidence  against  those  who  subse- 
quently come  into  the  suit  as  his  successors  in  interest  to 
the  matter  in  litigation. — Miller  v.  Nicodemus,  58  Neb. 
352,  78  N.  W.  61S. 

Oklahoma.  Admissions  in  pleading  as  to  execution  of  a 
contract  in  an  action  dismissed  without  prejudice  cannot 
be  contradicted  when  offered  in  a  subsequent  action. — 
Myers  v.  First  Presbyterian  Church,  11  Okl.  544,  69  P.  874. 
Oregon.  A  complaint  by  a  landlord  in  a  suit  against  a 
sublessee  is  admissible  in  a  suit  by  the  lessee  to  recover 
a  deposit  given  as  security  for  payment  of  rent. — Meagher 
v.  Eiler's  Music  House,  77  Or.  70,  150  P.  266. 
South  Dakota.  When  an  original  complaint  or  answer 
contains  an  admission  of  a  material  fact  which  a  party 
desires  to  establish  on  a  trial,  it  may  be  received  in  evi- 
dence as  are  other  written  declarations  and  admissions. — 
II  C.  Behjrens  Lumber  Co.  v.  Lager,  26  S.  D.  160,  128  NT, 
W.   698. 

It  is  immaterial  whether  the  court  in  which  it  was  filed 
had  jurisdiction. — Redwater  Land  &  Canal  Co.  v.  Reed, 
2(i  S.  D.  466,   128  X.  W.  702. 

Texas.  An  abandoned  pleading  may  be  used  as  an  admis- 
sion, though  not  verified. — Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Wright,   27   Trx    Civ.   App.  19S,  64   S.  W.  1001. 

An  original  and  abandoned  petition  alleging  that  plain- 
tiff's injury  was  the  result  of  the  overcrowded  condition 
of  a  hand  car  is  admissible  as  an  admission  of  the  falsity 
of  the  claim  set  up  in  an  amended  petition  seeking  to  re- 
cover upon  the  ground  of  negligence  of  the  brakeman  to 
observe  and  obey  a  signal  to  stop  the  car. — Galloway  v. 
San  Antonio  &  G.  Ry.  Co.,  (Tex.  Civ.  App.),  78  S.  W.  32. 
Statements   in   pleadings    are    admissible    in    evidence 


176  ADMISSIONS  DEFINED 

against  the  party  filing  them  without  regard  to  whether 
the  pleading  was  verified. — Wilkins  v.  Clawson,  50  Tex. 
Civ.  App.  82,  110  S.  W.  103. 

Statements  made  in  abandoned  pleadings  are  admissible. 
—Houston,  E.  &  W.  T.  Ry.  Co.  v.  DeWalt,  96  Tex.  134', 
70  S.  W.  531;  Lantry-Sharpe  Contr.  Co.  v.  McCracken, 
(Tex.  Civ.  App.),  134  S.  W.  363.  (Contradictory  decisions 
on  this  point  cited.) 

Washington.  Where  defendants  did  not  deny  an  allega- 
tion in  an  amended  complaint  denying  a  former  marriage 
•of  plaintiff's  deceased  husband,  they  could  not  introduce 
the  original  complaint  admitting  such  fact. — Goldwater  v. 
Burnside,  22  Wash.  215,   60  P.  409. 

EXPLANATION  OF  ADMISSIONS. 
Arkansas.  Whenever  an  admission  of  a  party  is  given  in 
evidence  against  him,  whatever  was  said  by  him  at  the 
time  that  would  in  any  way  qualify  or  explain  it  is  also 
admissible. — Adkins  v.  Hershy,  14  Ark.  442. 
South  Dakota.  The  party  against  whom  is  offered  an  ad- 
mission made  in  a  former  pleading  may  show  that  the 
declaration  or  admission  was  inserted  through  inadver- 
tence by  his  own  mistake,  or  by  the  mistake  of  his  attor- 
ney.— H.  C.  Behrens  Lumber  Co.  v.  Lager,  26  S.  D.  160, 
128  N.  W.  698. 

Texas.  Where  plaintiff  introduces  evidence  tending  to 
show  admissions  of  defendant  as  to  promise  to  pay  for 
lumber  delivered  to  another,  defendant  may  explain  the 
facts  and  circumstances  under  which  he  made  them, 
which  might  tend  to  show  that  he  did  not  intend  to  be 
bound  thereby. — Bartley  v.  Comer,  (Tex.  Civ.  App.),  89 
S.  W.  82. 

It  is  always  competent  for  the  party  against  whom  the 
pleading  is  offered  to  show  that  the  statement  was  in- 
advertently made,  or  was  not  authorized  by  him,  or  made 
under  a  mistake  of  fact. — Wilkins  v.  Clawson,  50  Tex.  Civ. 
App.  82,  110  S.  W.  103. 

Washington.  To  counteract  an  admission  made  in  a  veri- 
fied pleading  the  party  against  whom  it  is  offered  may 
show  that  it  was  inserted  by  mistake. — Goldwater  v.  Burn- 
side,  22  Wash.  215,  60  P.  409. 

When  evidence  is  admitted  showing  that  one  suing  for 
personal  injuries  stated  the  accident  was  his  own  fault. 


ADMISSIONS  DEFINED  177 

he  may  introduce  evidence  of  contradictory  statements 
made  by  him. — Conover  v.  Neher-Ross  Co.,  38  Wash.  172, 
80  P.  281. 

PROOF  AND  EFFECT. 
Nevada.  Admissions  are  not  conclusive  as  to  the  effect 
of  what  declarant  stated. — Peterson  v.  Pittsburg  Silver 
Peak  Gold  Min.  Co.,  37  Nev.  117,  140  P.  519. 
New  Mexico.  The  admission  by  a  party  to  a  suit  of  a 
material  fact,  which  in  and  of  itself  is  sufficient  to  defeat 
or  authorize  a  recovery,  affords  substantial  evidence  suf- 
ficient to  support  a  verdict  based  thereon  in  the  appellate 
court.  (Admission  that  payments  had  been  made  in  ex- 
cess of  amount  authorized  by  contract.) — Lyons  v.  Kit- 
chell,  18  N.  M.  82,  134  P.  213. 

North  Dakota.  Unless  admissions  are  contractual  they 
are  not  usually  conclusive,  but  are  open  to  rebuttal  or  ex- 
planation, or  they  may  be  controlled  by  higher  evidence. 
—Oakland  v.  Nelson,  28  N.  D.  456,  149  N.  W.  337. 

NOTE    IX. 

(To   Article   15.) 

This  definition  is  intended  to  exclude  admissions  by  plead- 
ing, admissions  which,  if  so  pleaded,  amount  to  estoppels, 
and  admissions  made  for  the  purposes  of  a  cause  by  the  par- 
ties or  their  solicitors.  These  subjects  are  usually  treated 
of  by  writers  on  evidence;  but  they  appear  to  me  to  belong 
to  other  departments  of  the  law.  The  subject,  including  the 
matter  which  I  omit,  is  treated  at  length  in  1  Ph.  Ev.  308- 
401,  and  T.  E.  ss.  653-788.  (1  Greenl.  Ev.,  §  169  et  seq.)  A 
vast  variety  of  cases  upon  admissions  of  every  sort  may  be 
found  by  referring  to  Roscoe,  N.  P.  (Index,  under  the  word 
Admissions.)  It  may  perhaps  be  well  to  observe  that  when 
an  admission  is  contained  in  a  document,  or  series  of  docu- 
ments, or  when  it  forms  part  of  a  discourse  or  conversation, 
so  much  and  no  more  of  the  document,  series  of  documents, 
discourse  or  conversation,  must  be  proved  as  is  necessary 
for  the  full  understanding  of  the  admission,  but  the  judge 
or  jury  may  of  course  attach  degrees  of  credit  to  different 
parts  of  the  matter  proved.  This  rule  is  elaborately  dis- 
cussed and  Illustrated  by  Mr.  Taylor,  ss.  655-665.  It  has 
Lost  much  of  the  importance  which  attached  to  it  when  par- 
tics  to  actions  could  not  be  witnesses,  but  could  be  compelled 
to  make  admissions  by  bills  of  discovery.  The  ingenuity 
of  equity  draughtsmen  was  under  that  system  greatly  exer- 
cised in  drawing  answers  in  such  a  form  that  it  was  impos- 
sible  to   read   part   of   them   without   reading   the   whole,   and 


178  WHO  MAY  MAKE  ADMISSIONS 

the  ingenuity  of  the  court  was  at  least  as  much  exercised 
in  countermining  their  ingenious  devices.  The  power  of 
administering  interrogatories,  and  of  examining  the  parties 
directly,  has  made  great  changes  in  these  matters. 


Article  16.* 
who   may    make   admissions    on    behalf   of   others,    and' 

WHEN. 

Admissions  may  be  made  on  behalf  of  the  real 
party  to  any  proceeding — 

By  any  nominal  party  to  that  proceeding; 

(2  Wigmore  Ev.,  §  1076.) 

By  any  person  who,  though  not  a  party  to  the 
proceeding,  has  a  substantial  interest  in  the 
event ; 

(2  Wigmore  Ev.,  §  1076.) 

By  any  one  who  is  privy  in  law,  in  blood,  or  in 
estate  to  any  party  to  the  proceeding  on  behalf 
of  that  party. 

(2  Wigmore  Ev.,  §  1076.) 

A  statement  made  by  a  party  to  a  proceeding 
may  be  an  admission  whenever  it  is  made,  unless 
it  is  made  by  a  person  suing  or  sued  in  a  repre- 
sentative character  only,  in  which  case  [it  seems] 
it  must  be  made  while  the  person  making  it  sus- 
tains that  character. 

(2  Wigmore  Ev.,  §  1076.) 

A  statement  made  by  a  person  interested  in  a 
proceeding,  or  by  a  privy  to  any  party  thereto,  is 
not  an  admission  unless  it  is  made  during  the  con- 
tinuance of  the  interest  which  entitles  him  to 
make  it  (and  only  as  affecting  his  interest). 


*  See  Note  at  end  of  Article. 


WHO  MAY  MAKE  ADMISSIONS  179 

Illustrations. 

(a)  The  assignee  of  a  bond  sues  the  obligor  in  the  name 
of  the  obligee. 

An  admission  on  the  part  of  the  obligee  that  the  money 
due  has  been  paid  is  deemed  to  be  relevant  on  behalf  of  the 
defendant. — 1 

(b)  An  admission  by  the  assignee  of  the  bond  in  the  last 
illustration  would  also  be  deemed  to  be  relevant  on  behalf 
of  the  defendant. 

(c)  A  statement  made  by  a  person  before  he  becomes  the 
assignee  of  a  bankrupt  is  not  deemed  to  be  relevant  as  an 
admission  by  him  in  a  proceeding  by  him  as  such  assignee. — 2 

(d)  Statements  made  by  a  person  as  to  a  bill  of  which  he 
had  been  the  holder  are  deemed  not  to  be  relevant  as  against 
the  holder,  if  they  are  made  after  he  has  negotiated  the 
bill.— 3 

PARTIES    OF    RECORD. 

The  declarations  of  a  party  to  the  record  are  as  agains'. 
him  admissible  in  evidence. — Greer  v.  Higgihs,  8  Kan.  519; 
Carlson  &  Hanson  v.  Holm,  2  Neb.  (Unof.)  38,  95  N.  W. 
1125;  Anderson  v.  Adams,  43  Or.  621,  74  P.  215;  Hart  v. 
Pratt,  19  Wash.  560,  53  P.  711. 

Colorado.  Sec.  7284  of  the  Revised  Statutes,  providing 
for  the  cross-examination  of  an  adverse  party,  has  not  the 
effect  to  deprive  a  party  of  the  advantage  of  prior  admis- 
sions by  an  adversary. — Grand  Lodge  A.  O.  U.  W.  v.  Tay- 
lor. 24  Colo.  App.  106,  131  P.  783. 

The  testimony  of  one  of  several  joint  plaintiffs,  given 
in  the  first  trial  of  a  cause,  may  be  read  for  the  defendant 
at  the  second  trial  as  an  admission  against  interest,  even 
though  the  party  so  testifying  is  present  in  court  at  such 
trial.— Grand  Lodge  A.  O.  U.  W.  v.  Taylor,  24  Colo.  App. 
106,    131    P.    783. 

Texas.  Statements  of  a  person,  before  acquisition  of  land 
by  him,  that  the  corner  of  the  tract  was  at  a  certain  point, 
are  inadmissible  against  him  after  he  had  acquired  an  in- 

1  See  Moriarty   v.   L,.  C.  &  D.  Co.,  L.   R.   5  Q.  B.   320.' 

2  Fenwick  v.  Thornton,  M.  &  M.  51  (by  Lord  Tenterden). 
In  Smith  v.  Morgan,  2  M.  &  R.  257,  Tindal,  C.  J.,  decided  ex- 
actly  the  reverse. 

Dodge  v.  Freedman's  Savings,  &c.  Co.,  93  U.  S.  379,  and 
cases  cited;    but   see   Hunt    v.    Haven,    56    N.   H.    87. 

3  Pocock  v.  Billing,  2  Bing.   269. 


180  WHO  MAY  MAKE  ADMISSIONS 

terest  therein. — Bell  v.  Preston,  19  Tex.  Civ.  App.  375,  47 
S.  W.  375. 

The  admissions  of  a  party  while  testifying  in  a  former 
suit  are  admissible  against  him.  (As  to  sales  of  liquor  to 
plaintiff's  husband.) — Birkman  v.  Fahrenthold,  52  Tex.  Civ. 
App.  335,  114  S.  W.  428. 

NOMINAL   PARTIES. 
Texas.     The  admissions  of  an  assignor,  made  a  mere  for- 
mal party  to  a  suit,  are  inadmissible  to  bind  the  assignee. 
—Hall  v.  Clountz,  26  Tex.  Civ.  App.  348,  63  S.  W.  941. 
PARTIES   INTERESTED. 

See  Art.  17. 

Admissions  by  a  person  having  a  joint  interest  in  prop- 
erty are  admissible,  whether  or  not  he  is  a  party  of  record. 
— Kilburn  v.  Ritchie,  2  Cal.  145;  Hardy  v.  De  Leon,  5  Tex. 
211;    Tuttle  v.  Turner,   28  Tex.  759. 

Idaho.  It  was  not  error  for  the  court  to  permit  the  wit- 
ness to  testify  to  declarations  made  to  him  by  one  of  the 
defendants. — Rosnagle  v.  Armstrong,  17  Idaho  246,  105 
P.  216. 

Kansas.  In  an  action  for  damages  for  negligently  causing 
death,  brought  by  an  administrator  for  the  benefit  of  the 
next  of  kin,  statements  of  the  latter  that  deceased  had 
not  been  of  any  pecuniary  assistance  to  them  are  admis- 
sible.—Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Ryan,  62  Kan.  682, 
64   P.   603. 

In  an  action  against  one  who  asserts  that  he  is  only  a 
nominal  party,  and  that  another  is  the  real  party  in  in- 
terest, the  former  cannot  be  heard  to  complain  if  on  the 
trial  the  court  permits  the  admissions  of  such  real  party 
in  interest  relating  to  the  subject  in  controversy  to  be 
given  in  evidence. — Brown  v.  Brown,  62  Kan.  666,  64  P. 
599. 

South  Dakota.  Where  the  transfer  of  a  note  was  fraud- 
ulent and  for  the  purpose  of  cutting  off  the  defense  of 
the  maker  of  the  note  against  such  fraud  and  circumven- 
tion, the  original  payee  is  still  deemed  to.be  the  owner 
thereof,  and  statements  made  by  him  are  competent  and 
proper  evidence  to  go  to  the  jury  on  the  question  of  fraud- 
ulent intent  in  the  inception  of  the  note  sued  on. — First 
Nat.  Bank  v.  Harvey,  29  S.  D.  284,  137  N.  W.  365. 
Washington.     Declarations  of  one  who  was    to    share  in 


WHO  MAY  MAKE  ADMISSIONS  181 

the  commission  with  plaintiff  in  a  real  estate  deal,  are  ad- 
missible in  an  action  for  such  commissions. — Kinnane  v. 
Conroy,  52  Wash.  651,  101  P.  223. 

PRIVIES   IN   LAW. 
Nebraska.     Admissions   made   by  a   litigant   in   his   plead- 
ing are  competent  evidence  against  those  who  subsequent- 
ly come  into  the  suit  as  his  successors  in  interest. — Mil- 
ler v.  Nicodemus,  58  Neb.  352,  78  N.  W.  618. 
PRIVIES   IN    ESTATE. 

A  tenant  in  possession  cannot  by  his  admissions  injure 
the  title  of  his  landlord. — Westenfelder  v.  Green,  24  Or. 
448,  34  P.  23;  Hurley  v.  Lockett,  72  Tex.  261,  121  S.  W.  212. 
Texas.  Statements  of  a  tenant  adverse  to  the  title  of  his 
landlord  are  inadmissible. — Warren  v.  Fredericks,  76  Tex. 
647,  13  S.  W.  643. 

Admissions  of  lessor  as  to  leasing  the  property  and  de- 
livering possession  are  admissible  as  against  one  who 
claimed  under  him.— Edwards  v.  Old  Settlers  Ass'n,  (Tex. 
Civ.  App.),  166  S.  W.  423. 

Grantor  Before  Conveyance. 

Declarations  made  by  an  owner,  or  one  in  possession 
of  property,  as  to  rights  of  others  therein,  are  admissible. 
— Costello  v.  Graham,  9  Ariz.  257,  80  P.  336;  Daly  v.  Joss- 
lyn,  7  Ida.  657,  65  P.  442;  Phillips  v.  Coburn,  28  Mont.  45, 
72  P.  291;  Mam  v.  Stephens,  (Tex.  Civ.  App.),  93  S.  W.  158. 
Idaho.  Declarations  of  a  grantor,  made  before  the  execu- 
tion of  a  deed  to  one  of  his  children,  touching  his  feelings 
towards  his  children,  or  his  intended  disposition  of  his 
property,  are  not  admissible  to  impeach  the  deed. — Kelly 
v.  Perrault,  5  Ida.  221,  48  P.  45. 

Declarations  made  by  a  grantor  prior  to  the  execution 
of  a  deed,  and  inconsistent  with  its  execution,  are  not 
admissible.— Turner  v.  Gumbert,  19  Ida.  339,  114  P.  33. 
South  Dakota.  The  complaint  in  an  action  by  plaintiff's 
grantor  against  one  H..  to  recover  for  water  used  by  H., 
in  which  plaintiff's  grantor  stated  the  amount  of  water 
used  by  surh  grantor,  aro  admissible  as  against  interest. —  ' 
Redwater  Land  &  Canal  Co.  v.  Reed,  26  S.  D.  466,  128 
N.  W.  702. 

Texas.  Declarations  of  a  grantor  made  before  the  execu- 
tion of  an  instrument  are  not  competent  to  prove  fraud 
or  duress,   but   if  made  at  the  time  the   instrument  was 


182  WHO  MAY  MAKE  ADMISSIONS 

executed,    are    admissible    as    part    of   the    res    gestae. — 
Rankin  v.  Rankin,  105  Tex.  451,  151  S.  W.  527. 

Declarations  or  admissions  in  disparagement  of  title, 
made  before  the  execution  of  a  deed,  though  admissible 
against  the  grantee,  are  not  admissible  as  against  an  in- 
nocent purchaser. — Raynor  v.  Posey,  (Tex.  Civ.  App.),  173 
S.  W.  246. 

Grantor  After  Conveyance. 

Evidence  of  declarations  of  an  owner  of  land,  made 
after  he  had  conveyed  his  title,  are  inadmissible  as 
against  his  grantee. — Packard  v.  Johnson,  (Cal.),  4  P. 
632;  Taylor  v.  Central  Pac.  R.  Co.,  67  Cal.  615,  8  P.  436; 
Banning  v.  Marleau,  121  Cal.  240,  53  P.  692;  Henderson  v. 
Hart,  122  Cal.  332,  54  P.  1110;  Bollinger  v.  Bollinger,  154 
Cal.  695,  99  P.  196;  Vote  v.  Carrick,  13  Colo.  App.  388,  58 
P.  333;  Meyer  v.  Munro,  9  Ida.  46,  71  P.  969;  Consolidated 
Tank  Line  Co.  v.  Pien,  44  Neb.  887,  62  N.  W.  1112;  O.  S. 
Paulson  Merc.  Co.  v.  Seaver,  8  N.  D.  215,  77  N.  W.  1001; 
Woods  v.  Faurot,  14  Okl.  171,  77  P.  346;  Krewson  v.  Pur- 
dom,  11  Or.  266,  3  P.  822;.  Smith  v.  Gillum,  80  Tex.  120, 
15  S.  W.  794;  Smith  v.  Dunman,  9  Tex.  Civ.  App.  319,  29 
S.  W.  432;  Phillips  v.  Sherman,  (Tex.  Civ.  App.),  39  S.  W. 
187  (statements  as  to  deeding  in  trust) ;  Mam  v.  Stephens, 
(Tex.  Civ.  App.),  93  S.  W.  158;  Brown  v.  Yoakum,  (Tex. 
Civ.  App.),  170  S.  W.  803. 

Declarations  or  admissions  of  a  grantor,  made  after  he 
has  parted  with  the  title,  are  not  competent  to  defeat 
such  title,  where  there  is  no  evidence  of  fraud  or  con- 
spiracy against  creditors. — Smith  v.  Wilson,  5  Kan.  App. 
379,  48  P.  436;  Zobel  v.  Rauersachs,  55  Neb.  20,  75  N.  W. 
43;  Leonard  v.  Fleming,  13  N.  D.  629,  102  N.  W.  308;  Smith 
v.  James,  (Tex.  Civ.  App.),  42  S.  W.  792;  Snow  v.  Rich, 
22  Utah  123,  61  P.  336. 

The  declarations  of  a  vendor,  made  after  the  sale  and 
not  being  a  part  of  the  transaction,  are  not  admissible 
in  evidence  as  against  the  vendee: 

Nevada:     Perley  v.  Forman,  7  Nev.  309   (that  vendee  was 
informed  of  plaintiff's  rights  in  the  property). 
Texas:     Copp  v.  Swift,  (Tex.  Civ.  App.),  26  S.  W.  438  (as 
to  his   intention  in  attaching  personal   property  to   free- 
hold). 


WHO  MAY  MAKE  ADMISSIONS  183 

Declarations  of  a  grantor  showing  fraud  in  the  convey- 
ance are  admissible  to  show  a  sale  fraudulent  as  to 
creditors: 

California:  Canning  v.  Marleau,  133  Cal.  485,  65  P.  964 
(transfer  colorable,  with  no  change  of  possession). 
Montana:  Pincus  v.  Reynolds,  19  Mont.  564,  49  P.  145 
(admissible  even  if  the  grantee  was  not  present;  on  the 
principle  of  declarations  of  conspirators). 
Oregon:  Walker  v.  Harold,  44  Or.  205,  74  P.  705  (after 
execution  of  deed;  statements  in  a  petition  to  cancel  a 
mortgage). 

Texas:  Thompson  v.  Rosenstein,  (Tex.  Civ.  App.),  67  S. 
W.  439    (declarations  showing  fraud). 

Arizona.  Declarations  of  a  grantor  as  to  the  purpose  of 
a  deed,  made  after  its  execution,  are  inadmissible. — Miller 
v.  Miller,  7  Ariz.  316,  64  P.  415. 

Arkansas.  Statements  of  a  grantor  that  he  had  delivered 
a  deed  are  admissible. — Cribbs  v.  Walker,  74  Ark.  104,  85 
S.  W.  244. 

That  the  grantee  had  no  interest  therein,  inadmissible. 
—Foster  v.  Beidler,  79  Ark.  418,  96  S.  W.  175. 

Declarations  of  an  owner  of  property  made  after  execu- 
tion of  a  deed,  tending  to  impeach  the  instrument,  are 
inadmissible.— Hargus  v.  Hayes,  8-3  Ark.  186,  103  S.  W.  163. 
California.  Statements  made  by  a  grantor  after  execu- 
tion of  deed,  that  it  was  made  in  trust,  are  inadmissible. — 
Bollinger  v.  Bollinger,  154  Cal.  695,  99  P.  196. 

Declarations,  acts  and  conduct  of  a  grantor  after  the 
execution  of  a  deed,  while  it  was  held  by  a  depository, 
are  admissible  as  to  whether  there  had  been  a  delivery 
of  such  deed.— Williams  v.  Kidd,  170  Cal.  631.  151  P.  1. 
Colorado.  Declarations  of  a  grantor,  made  after  a  con- 
veyance, as  to  his  purpose  in  transferring  the  property  to 
prevent  creditors  from  attaching,  are  inadmissible,  where 
the  grantee  had  no  notice  of  his  fraudulent  purpose. — 
Jefferson  County  Bank  v.  Hummel.  11  Colo.  App.  337,  53 
P.  286. 

Idaho.  Statements  in  a  mortgage  of  an  upper  tract  of 
land  as  to  water  rights  mortgaged  therewith  are  not  ad- 
missible to  show  the  extent  of  water  rights  intended  to  be 
conveyed  in  a  prior  mortgage  of  a  lower  tract  to  another 
party.— Josslyn  v.  Daly,  15  Ida.  137,  96  P.  568. 


184  WHO  MAY  MAKE  ADMISSIONS 

Kansas.  Declarations  of  a  vendor  of  cattle,  made  several 
months  after  a  transfer  of  them  to  his  wife,  as  to  his 
purpose  in  making  the  transfer,  are  inadmissible. — Smith 
v.  Wilson,  5  Kan.  App.  379,  48  P.  436. 

Oklahoma.  Declarations  of  a  mortgagor  after  the  execu- 
tion of  the  instrument,  impeaching  it,  or  showing  that  it 
was  without  consideration,  or  that  he  did  not  have  a  legal 
right  to  mortgage,  are  inadmissible. — First  Nat.  Bank  of 
Enid  v.  Yoeman,  17  Okl.  613,  90  P.  412. 
Oregon.  The  default  or  confession  of  a  debtor,  made  a 
party  in  a  suit  to  set  aside  his  conveyance  as  in  fraud 
of  creditors,  cannot  bind  his  vendee. — Ball  v.  Danton,  64 
Or.  184,  129  P.  1032. 

Grantor  In   Possession  After  Conveyance. 

Declarations  of  a  grantor,  made  after  conveyance,  but 
while  he  holds  possession,  are  admissible  to  show  fraud: 
Nevada:  Gregory  v.  Frothingham,  1  Nev.  253  (that  he 
held  the  land  as  part  owner). 

Texas:  Cooper  v.  Friedman,  23  Tex.  Civ.  App.  585,  57 
S.  W.  581  (that  sale  was  simulated  for  the  purpose  of 
keeping  his  creditors  from  seizing  it). 

California.  Declaration  of  a  grantor  in  possession  after 
a  conveyance,  but  only  as  manager,  that  the  property  was 
still  his,  is  inadmissible. — Scholle  v.  Finnell,  167  Cal.  90, 
138  P.  746. 

Kansas.  Declarations  of  one  who,  after  a  deed  of  land  by 
himself  and  wife  to  his  brother,  treated  the  land  as  his 
own,  and  received  rent  for  it,  that  he  still  owned  the  land 
which  he  had  deeded  to  his  brother  to  defraud  his  wife, 
are  admissible.— Watts  v.  Myers,  93  Kan.  824,  145  P.  827. 
Vendor   of   Personal    Property    Before   Transfer. 

Declarations  of  one  in  possession  of  personal  property, 
in  disparagement  of  his  title,  or  explanatory  of  the  char- 
acter of  his  possession,  are  admissible: 
California:     Visher  v.  Webster,   8  Cal.   109    (showing  sale 
made  to  defraud). 

Kansas:     Wiggins  v.  Foster,  8  Kan.  App.  579,  55  P.  350. 
Nebraska:     Cunningham  v.  Fuller,  35  Neb.  58,   52  N.  W. 
836;  Benton  v.  Sikyta,  84  Neb.  808,  122  N.  W.  61  (of  payee 
of  note,   tending  to  impeach  validity,   admissible   against 
a  person  not  an  innocent  holder). 


WHO  MAY  MAKE  ADMISSIONS  185 

Oklahoma:  Frick  v.  Reynolds,  6  Okl.  638,  52  P.  391  (to 
same  effect) ;  Rauh  v.  Morris,  40  Okl.  288,  137  P.  1174  (in- 
tention to  defeat  creditors,  made  before  or  at  time  of 
alleged  fraudulent  sale). 

South  Dakota:  M.  Rumely  Co.  v.  Anderson,  35  S.  D.  114, 
150  N.  W.  939  (assignor  of  note  while  in  possession  after 
maturity). 

Wyoming:  Toms  v.  Whitmore,  6  Wyo.  220,  44  P.  56  (on 
question  of  fraud). 

Contra,  Deasey  v.  Thurman,  1  Ida.  775;  O'Brien  v.  Hil- 
burn,  22  Tex.  616. 

California.  Declarations  of  a  vendor  of  personal  prop- 
erty, while  in  possession  before  a  sale,  are  admissible. — 
Smith  v.  Goethe,  159  Cal.  628,  115  P.  223. 
Utah.  Declarations  in  disparagement  of  title  made  before 
an  assignment  are  admissible. — McCormick  v.  Sadler,  14 
Utah  463,  47  P.  667. 

Vendor  of  Personal  Property  After  Transfer. 

Evidence  of  admissions  of  a  vendor  or  mortgagor  of 
personal  property  made  after  a  sale  or  mortgage  thereof, 
are  not  admissible  as  against  his  vendee  or  mortgagee. — 
Banning  v.  Marleau,  121  Cal.  240,  53  P.  692;  Henderson  v. 
Hart,  122  Cal.  332,  54  P.  1110;  Vote  v.  Carrick,  13  Colo. 
App.  388,  58  P.  333;  Meyer  v.  Munro,  9  Ida.  46,  71  P.  969; 
Scheble  v.  Jordan,  30  Kan.  353,  1  P.  121;  Williams  v. 
Eikenbury,  25  Neb.  721,  41  N.  W.  770;  Lewis  v.  Wilcox.  6 
Nev.  217;  Woods  v.  Faurot,  14  Okl.  171,  77  P.  346;  Aldous 
v.  Olverson,  17  S.  D.  190,  95  N.  W.  917;  Boaz  v.  Schneider, 
69  Tex.  128,  6  S.  W.  402;  Crawford  v.  Hord,  40  Tex.  Civ. 
App.  352,  89  S.  W.  1097;  Toms  v.  Whitmore,  6  Wyo.  220, 
44  P.  56. 

The  declarations  of  an  assignor  of  property  for  the 
benefit  of  creditors  made  after  assignment  are  not  admis- 
sible for  the  purpose  of  impairing  the  title  of  the  assignee. 
—Brock  v.  Schradsky,  6  Colo.  App.  402,  41  P.  512;  Carle- 
ton  v.  Baldwin,  27  Tex.  572;  Hairgrove  v.  Millington,  8 
Kan.  480. 

Arkansas.  A  drawer's  statements  after  acceptance  of  his 
draft  and  payment  to  his  account,  inadmissible. — Cox 
Wholesale  Grocery  Co.  v.  National  Bank,  107  Ark.  601, 
156  S.  W.  187'. 


186  WHO  MAY  MAKE  ADMISSIONS 

Declarations  of  a  vendor  of  chattels  after  parting  with 
possession,  showing  fraud,  and  that  he  claimed  to  still  be 
the  owner,  are  inadmissible. — Collin  County  Grain  Co. 
v.  Andrews,  110  Ark.  597,  162  S.  W.  1098. 
Kansas.  Subsequent  statements  of  a  grantor  are  admis- 
sible to  show  whether  a  deed  was  made  as  a  gift  or  an 
advancement— Martin  v.  Shumway,  89  Kan.  892,  132  P. 
993. 

Montana.  Declarations  of  a  vendor  of  personal  property, 
while  still  in  possession,  after  the  sale,  are  admissible  to 
show  a  fraudulent  sale. — Gallick  v.  Bordeaux,  22  Mont. 
470,  56  P.  961. 

Nebraska.  The  purchaser  of  a  note  is  unaffected  by  the 
statements  of  one  who  has  parted  with  title  and  posses- 
sion.—Zobel  v.  Bauersachs,  55  Neb.  20,  75  N.  W.  43. 

Declarations  of  a  vendor  of  personal  property,  made 
after  delivery  of  possession,  are  admissible,  where  fraud 
as  to  creditors  is  charged. — Armagast  v.  Rising,  54  Neb. 
763,  75  N.  W.  534;  Kyd  v.  Cook,  56  Neb.  71,  76  N.  W.  524. 

Declarations  of  intent  to  place  property  out  of  reach  of 
creditors,  made  in  presence  of  vendee  after  taking  pos- 
session, but  before  payment  of  consideration,  admissible. 
—Bender  v.  Kingman,  62  Neb.  469,  87  N.  W.  142. 
Texas.  Declarations  of  a  vendor,  made  after  a  sale,  and 
without  the  presence  or  knowledge  of  the  vendee,  are  in- 
admissible to  defeat  the  vendee's  title. — Smith  v.  Jamea, 
(Tex.  Civ.  App.),  42  S.  W.  792;  Sanger  v.  Jesse  French 
Piano  &  Organ  Co.,  21  Tex.  Civ.  App.  523,  52  S.  W.  621. 

The  declarations  of  an  assignor  of  property  subsequent 
to  the  assignment  that  tend  to  defeat  the  assignment  are 
not  admissible  in  evidence,  though  the  assignor  has  since 
died.— Crawford  v.  Hord,  40  Tex.  Civ.  App.  352,  89  S.  W. 
1097. 

DECLARATIONS  OF  ANCESTOR  OR  DECEDENT. 

Declarations  of  a  decedent  that  certain  property  be- 
longed to  another  are  admissible  against  his  administra- 
tor.— Byrne  v.  Reed,  75  Cal.  277,  17  P.  201;  Bush  v.  Barron, 
78  Tex.  5,  14  S.  W.  238. 

Statements  against  interest,  made  by  ancestor  or  de- 
ceased, are  admissible  against  heirs  or  personal  represen- 
tatives.—Ruedas  v.  O'Shea,  (Tex.  Civ.  App.),  127  S.  W. 
891;   Corbett  v.  Weaver,  59  Wash.  248,  109  P.  803. 


WHO  MAY  MAKE  ADMISSIONS  187 

Arkansas.  A  statement  of  a  deceased  employee  as  to 
the  cause  of  his  injuries  are  inadmissible  to  bind  his  widow 
and  children. — Kansas  City  Southern  Ry.  Co.  v.  Leslie,  112 
Ark.  305,  167  S.  W.  83. 

California.  Statements  of  a  grantor  as  to  why  she  exe- 
cuted a  deed  are  admissible  against  her  representatives.— 
Broaddus  v.  Monroe,  13  Cal.  App.  464,  110  P.  158. 

Testator's  declarations  subsequent  to  making  a  will,  not 
admissible  to  establish  a  trust  as  to  property  held  by  a 
residuary  legatee. — Francoeur  v.  Beatty,  170  Cal.  740,  151 
P.  123. 

Kansas.  Statements  by  decedent  as  to  what  she  proposed 
to  do  for  plaintiff  by  will  is  relevant  to  prove  contract  to 
compensate  plaintiff  for  services  by  adequate  provision 
in  her  will.— Bonebrake  v.  Tauer,  67  Kan.  827,  72  P.  521. 
Montana.  Declarations  of  an  intestate,  made  after  con- 
veyance, pointing  out  property  transferred,  are  admissible 
against  his  administrator. — Collins  v.  McKay,  36  Mont. 
123,  92  P.  295. 

Oregon.  Admissions  of  an  intestate  showing  his  own  il- 
legitimacy are  admissible  as  against  those  claiming  under 
him.— State  v.  McDonald,  55  Or.  419,  104  P.  967. 
Texas.  Declarations  of  ancestor  as  to  purpose  in  laying 
out  a  square  admissible  to  show  a  dedication  of  a  public 
square. — Scott  v.  Rockwell  County,  (Tex.  Civ.  App.),  49 
S.  W.  932. 

DECLARATIONS  OF  INSURED. 
Declarations  of  an  insured  showing  that  he  contem- 
plated suicide  are  inadmissible. — Jenkin  v.  Pacific  Mut. 
Life  Ins.  Co.,  131  Cal.  121,  63  P.  180;  Klein  v.  Knights  and 
Ladies  of  Security,  87  Wash.  179,  151  P.  241. 
Arizona.  Statements  of  an  insured  made  in  an  affidavit 
when  registered  as  a  voter  are  inadmissible  to  contradict 
his  statements  of  age  in  application  for  insurance. — Logia 
Suprema  de  LaAlianza  Hispano-Americano  v.  De  Aguirre. 
14  Ariz.  390,  129  P.  503. 

California.     Declarations   of  insured   after  date   of   policy 
admissible  to  charge   beneficiary  where  the   insured   had 
reserved    the    right    to    change    beneficiary. — McEwen    v. 
New  York  Life  Ins.  Co.,  23  Cal.  App.  694,  139  P.  242. 
Kansas.     Declarations  of  an  insured  after  his  application 


188  WHO  MAY  MAKE  ADMISSIONS 

are  admissible  to  impeach  its  truthfulness. — Washington 
Life  Ins.  Co.  v.  Haney,  10  Kan.  525. 

Nebraska.  Statements  of  an  insured  tending  to  show  his 
idea  of  his  standing  with  the  association  are  admissible 
against  the  beneficiary. — Ogden  v.  Sovereign  Camp,  Wood- 
men of  the  World,  78  Neb.  804,  111  N.  W.  797. 
Washington.  Declarations  of  an  insured  in  a  mutual  bene- 
fit association  are  admissible  against  the  beneficiary. — 
Armstrong  v.  Modern  Woodmen  of  America,  (Wash.),  160 
P.  949. 

TRUSTEES,   GUARDIANS   AND   ADMINISTRATORS. 

The  acts  and  declarations  of  a  trustee  or  administrator, 
while  not  engaged  in  the  business  of  the  trust,  are  inad- 
missible: 

Arkansas:  Fargason  v.  Edrington,  49  Ark.  207,  4  S.  W. 
763  (by  trustee  in  trust  deed,  before  he  became  trustee, 
affecting  the  title  of  the  property) ;  Prater  v.  Frazier,  11 
Ark.  249  (by  administrator,  made  during  life  of  intestate). 
Colorado:  Belknap  Sav.  Bank  v.  Lamar  Land  &  Canal 
Co.,  28  Colo.  236,  64  P.  212  (by  trustee,  charged  with  being 
faithless  to  his  trust). 

Nebraska:  Reed  v.  Beardsley,  6  Neb.  493  (as  to  consid- 
eration of  deed,  made  to  vendee  by  naked  trustee  holding 
legal  title  merely  for  convenience  of  transfer). 
Texas:  Gilbert  v.  Odum,  69  Tex.  470,  7  S.  W.  510  (by  ad- 
ministrator, in  form  of  affidavit  in  county  court  in  progress 
of  administration,  that  he  had  become  satisfied  that  one- 
half  of  certain  property  set  out  and  claimed  by  the  estate 
was  the  property  of  another). 

Admissions  by  guardians  against  the  interests  of  their 
wards,  whether  made  in  courf  proceedings,  pleadings  or 
otherwise,  are  incompetent  to  bind  ninors  or  incompe- 
tents: 

California:  Hayden  v.  Collinr  1  CaV  App.  259,  81  P.  1120 
(conversations  between  defenda.::  r.irl  guardian  of  incom- 
petent, who  was  suing  in  ejectment,  as  to  agreement  be- 
tween defendant  and  the  incompetent  as  to  the  property) ; 
Kidwell  v.  Ketler,  146  Cal.  12,  79  P.  514  (admissions  in 
pleadings). 

Colorado:  Hutchinson  v.  Laughlin,  15  Colo.  492,  25  P. 
317   (admissions  in  pleading) ;   Fetta  v.  Vandevier,  3  Colo. 


WHO  MAY  MAKE  ADMISSIONS  189 

App.  419,  34  P.  168,  affirmed  in  Vandevier  v.  Fetta,  20  Colo. 

368,  38  P.  466  (failure  of  guardian  to  object  to  Incompe- 
tent testimony) ;  Seaton  v.  Tohill,  11  Colo.  App.  211,  53 
P.  170  (plea  of  infancy  by  guardian  ad  litem,  in  suit  to 
enforce  contract). 

North  Dakota:  Stevens  v.  Continental  Casualty  Co.,  12 
N.  D.  463,  97  N.  W.  862  (statements  of  cause  of  death  of 
parent  of  minors  suing  by  guardian  on  insurance  policy). 
Oregon:  Westenfelder  v.  Green,  24  Or.  448,  34  P.  23  (by 
guardian,  holding  lands  under  appointment  as  guardian, 
that  he  holds  the  lands  for  certain  third  persons). 
Texas:  Phillips  v.  Herndon,  78  Tex.  378,  14  S.  W.  510 
(acts  and  declarations  of  grandfather  of  minors,  before 
he  became  their  guardian). 

The  declarations  of  an  executor  or  administrator  before 
his  appointment  are  not  admissible  against  him  in  his 
representative   capacity: 

Oregon:  Williams  v.  Culver,  39  Or.  337,  64  P.  763  (as  to 
payment  of  a  note  to  decedent). 

Texas:  Lindsey  v.  White,  (Tex.  Civ.  App.),  61  S.  W.  438 
(as  to  insanity  of  testatrix). 

Oklahoma.  In  an  action  by  an  infant  through  his  guar- 
dian, the  admissions  of  the  guardian  as  to  the  value  of  the 
property  for  destruction  of  which  recovery  is  sought  is 
inadmissible. — Missouri  O.  &  G.  Ry.  Co.  v.  Gentry,  31 
Okl.  579,  122  P.  537. 

Oregon.  Declarations  of  the  receiver  of  a  bank  as  to 
the  receipt  by  the  bank  of  a  draft  prior  to  his  appoint- 
ment are  inadmissible. — First  Nat.  Bank  v.  Linn  County 
Nat.  Bank,  30  Or.  296,  47  P.  614. 

NOTE    X.  j 

(To    Article    16.) 

As  to  admissions  by  parties,  see  Morlarty  v.  L.  C.  &  D. 
Railway,  L.  R.  5  Q.  B.  320,  per  Blackburn,  J.;  Alner  v. 
George,   1  Camp.   392;  Bauerman  v.   Radenius,  7  T.  R.   663. 

As  to  admissions  by  parties  interested,  see  Spargo  v. 
Brown,   9   B.  &  C.   938.      [2   Wigmore   Ev„    §   1048   et  seq.] 

See   also   on    the   subject   of   this  article,    1    Ph.    Ev.    362-363, 

369,  398.  and  T.  E.  ss.   669-671,  685,  687,  719;   Roscoe,  N.  P.  71. 
As  to  admissions   by   privies,   see   1    Ph.   Ev.    394-397   and   T. 

E.    (from  Greenleaf)    s.   712.      [2  Wigmore  Ev.,   §§   1077-1087.] 


190  ADMISSIONS  BY  AGENTS 

Article  17.* 

admissions    by   agents    and    persons    jointly    interested 

with  parties. 

Admissions  may  be  made  by  agents  authorized 
to  make  them  either  expressly  or  by  the  conduct 
of  their  principals;  but  a  statement  made  by  an 
agent  is  not  an  admission  merely  because  if  made 
by  the  principal  himself  it  would  have  been  one. 
(a) 

A  report  made  by  an  agent  to  a  principal  is  not 
an  admission  which  can  be  proved  by  a  third  per- 
son.— b. 

Partners  and  joint  contractors  are  each  other's 
agents  for  the  purpose  of  making  admissions 
against  each  other  in  relation  to  partnership 
transactions  or  joint  contracts. 

Barristers  and  solicitors  are  the  agents  of 
their  clients  for  the  purpose  of  making  admis- 
sions whilst  engaged  in  the  actual  management 
of  the  cause,  either  in  court  or  in  correspondence 
relating  thereto;  but  statements  made  by  a  bar- 
rister or  solicitor  on  other  occasions  are  not  ad- 
missions merely  because  they  would  be  admissions 
if  made  by  the  client  himself. 

The  fact  that  two  persons  have  a  common  in- 
terest in  the  same  subject  matter  does  not  entitle 
them  to  make  admissions  respecting  it  as  against 
each  other. 

a    [2  Wigmore  Ev.,   §    1078;    3   Id.,   §    1797.] 

b  Re  Devala  Co.,   22   Ch.   Div.   593. 

c  9  Geo.  IV,  c.  14,  s.  1.  The  first  set  of  words  in  paren- 
thesis was  added  by  19  and  20  Vict.,  c.  97,  s.  13;  the  second 
set  by  s.  14  of  the  same  Act.  The  language  is  slightly  al- 
tered. 


ADMISSIONS  BY  AGENTS  191 

In  cases  in  which  actions  founded  on  a  simple 
contract  have  been  barred  by  the  Statutes  of  Lim- 
itations no  joint  contractor  nor  his  personal  rep- 
resentative loses  the  benefit  of  such  statute,  by 
reason  only  of  any  written  acknowledgment  or 
promise  made  or  signed  by  [or  by  the  agent  duly 
authorized  to  make  such  acknowledgment  or 
promise  of]  any  other  or  others  of  them  [or  by 
reason  only  of  payment  of  any  principal,  interest, 
or  other  money,  by  any  other  or  others  of  them.] 
(c) 

A  principal,  as  such,  is  not  the  agent  of  his 
surety  for  the  purpose  of  making  admissions  as 
to  the  matters  for  which  the  surety  gives  se- 
curity. 

Illustrations. 

(a)  The  question  is,  whether  a  parcel,  for  the  loss  of  which 
a  railway  company  is  sued,  was  stolen  by  one  of  their  serv- 
ants. Statements  made  by  the  station  master  to  a  police 
officer,  suggesting  that  the  parcel  had  been  stolen  by  a  porter, 
are  deemed  to  be  relevant,  as  against  the  railway,  as  admis- 
sions  by   an   agent. — 1 

<M  A  allows  his  wife  to  carry  on  the  business  of  his  shop 
in  his  absence.  A  statement  by  her  that  he  owes  money  for 
goods  supplied  to  the  shop  is  deemed  to  be  relevant  against 
him   as  an  admission   by  an  agent. — 2 

(c)  A  sends  his  servant,  B,  to  sell  a  horse.  What  B  says 
at  the  time  of  the  sale,  and  as  part  of  the  contract  of  sale, 
is  deemed  to  be  a  relevant  fact  as  against  A,  but  what  B 
says  upon  the  subject  at  some  different  time  is  not  deemed 
to  be  relevant  as  against  A — 3  [though  it  might  have  been 
deemed    to   be    relevant    if   said   by   A   himself]. 

(d)  The  question  is,  whether  a  ship  remained  at  a  port 
for  an  unreasonable  time.  Letters  from  the  plaintiff's  agent 
to  the  plaintiff  containing  statements  which  would  have  been 

1  Kirkstall  Brewery  v.   Furness  Ry.,   L.  R.   9  Q.   B.   468. 

2  Clifford   v.    Burton,    1    Bing.    199. 

3  llelyear  v.    tiawke,   5   Esp.   72. 


*  See  Note  at  end  of  Article. 


192  ADMISSIONS  BY  AGENTS 

admissions  if  made  by  the  plaintiff  himself  are  deemed  to  be 
irrelevant   as   against  him. — 4 

(e)  A,  B  and  C  sue  D  as  partners  upon  an  alleged  contract 
respecting  the  shipment  of  bark.  An  admission  by  A  that 
the  bark  was  his  exclusive  property  and  not  the  property  of 
the  firm  is  deemed  to  be  relevant  as  against  B  and  C. — 5 

(f)  A,  B,  C  and  D  make  a  joint  and  several  promissory 
note.  Either  can  make  admissions  about  it  as  against  the 
rest. — 6 

(g)  The  question  is,  whether  A  accepted  a  bill  of  exchange. 
A  notice  to  produce  the  bill  signed  by  A's  solicitor  and  de- 
scribing the  bill  as  having  been  accepted  by  A  is  deemed  to 
be  a  relevant   fact. — 7 

(h)  The  question  is,  whether  a  debt  to  A,  the  plaintiff,  was 
due  from  B,  the  defendant,  or  from  C.  A  statement  made  by 
A's  solicitor  to  B's  solicitor  in  common  conversation  that  the 
debt  was  due  from  C  is  deemed  not  to  be  relevant  against 
A.— 8 

(i)  One  co-part-owner  of  a  ship  cannot,  as  such,  make  ad- 
missions against  another  as  to  the  part  of  the  ship  in  which 
they  have  a  common  interest,  even  if  he  is  co-partner  with 
that  other  as  to   other   parts  of  the   ship. — 9 

(j)  A  is  surety  for  B,  a  clerk.  B  being  dismissed  makes 
statements  as  to  sums  of  money  which  he  has  received  and 
not  accounted  for.  These  statements  are  not  deemed  to  be 
relevant   as   against    A,    as   admissions. — 10 

ADMISSIONS  BY  AGENTS. 
As  Part  of  Transaction. 
The.  statements  and  declarations  of  an  agent,  made  In 
reference  to  an  act  which  he  is  authorized  to  perform, 
and  at  a  time  when  he  is  conducting  the  business  or  mak- 
ing propositions  to  that  end,  are  admissible  against  his 
principal: 

California:     Neeley  v.  Naglee,  23  Cal.  152  (letter  as  to  an 
agreement). 

Colorado:     Union  Gold.  Min.  Co.  v.  Rocky  Mt.  Nat.  Bank, 
2  Colo.  565;  Western  Inv.  &  Land  Co.  v.  First  Nat.  Bank, 

4  Langhorn   v.   Allnutt,    4   Tau.    511. 

5  Lucas   v.   De   La  Cour,    1   M.   &   S.    249. 

6  Whitcomb  v.   Whitting,   1   S.   L.   C.   644. 

7  Holt  v.  Squire,   Ry.  &  Mo.   282. 

8  Petch   v.   Lyon,   9    Q.   B.    147. 

9  Jaggers  v.   Binning,   1    Star.    64. 

10  Smith  v.  Whippingham,  6  C.  &  P.  78.  See  also  Evans  v. 
Beattie,  5  Esp.  26;  Bacon  v.  Chesney,  1  Star.  192;  Caermar- 
then  R.  C.  V.  Manchester  R.  C,  L.  R.  8  C.  P.  685. 


ADMISSIONS  BY  AGENTS  193 

23  Colo.  App.  143,  128  P.  476  (making  a  contract,  or  doing 
an  act,  explanatory  of  act). 

Nebraska:  Union  Life  Ins.  Co.  v.  Hanian,  54  Neb.  599, 
74  N.  W.  1090  (in  presence  of  third  person,  that  a  pay- 
ment was  in  full  of  premium  of  insurance). 
Texas:  Supreme  Lodge,  Knights  of  Honor,  v.  Rampy, 
(Tex.  Civ.  App.),  45  S.  W.  422  (report  to  lodge  as  to 
insured's  standing) ;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Cunning- 
ham, 51  Tex.  Civ.  App.  368,  113  S.  W.  767  (statements  of 
policeman  directing  and  controlling  movements  of  plain- 
tiff's horses,  as  to  condition  of  defendant's  yards) ;  El 
Paso  &  S.  W.  R.  Co.  v.  Eichel  &  Weikel,  (Tex.  Civ.  App.), 
130  S.  W.  922  (in  action  for  loss  of  profits  on  contract  for 
ballast,  estimate  of  cost  furnished  by  plaintiff's  engineer 
to  defendant);  American  Laundry  Mfg.  Co.  v.  Belcher, 
(Tex.  Civ.  App.),  152  S.  W.  853  (statements  of  employee 
of  seller  repairing  machinery,  as  to  quality,  age  and  con- 
dition); Pecos  &  N.  T.  Ry.  Co.  v.  Amarillo  St.  Ry.  Co., 
(Tex.  Civ.  App.),  171  S.  W.  1103  (plaintiff's  agent,  in  con- 
ference with  defendant's  agents,  not  claiming  defendant's 
liability  for  burning  of  plaintiff's  bridge). 
Washington:  Lee  Hong  v.  Schoenwald,  86  Wash.  326, 
150  P.  436  (statement  by  cannery  foreman  In  sole  charge 
as  to  defective  condition  of  machinery,  made  to  plaintiff 
who  was  complaining  that  he  was  not  able  to  pack  the 
required  number  of  cases  per  day). 

Admissions  of  an  agent,  in  order  to  be  admissible 
against  the  principal,  must  be  made  as  agent,  and  while 
he  is  acting  for  the  principal  within  his  authority. — 
Rounseville  v.  Paulson.  19  N.  D.  446,  126  N.  W.  221;  Chick- 
asha  Cotton  Oil  Co.  v.  Lamb  &  Tyner,  2S  Okl.  275,  114  P. 
333;  Harding  v.  Oregon-Idaho  Co.,  57  Or.  34,  110  P.  412; 
El  Paso  &  S.  W.  R.  Co.  v.  Eichel  &  Weikel,  (Tex.  Civ. 
App.),  130  S.  W.  922. 

Declarations  of  a  herder  of  sheep  which  were  trespass- 
ing upon  property  of  another,  that  they  belonged  to  de- 
fendant, and  that  he  was  herding  them  for  him,  are  in- 
admissible—Surbaugh  v.  Butterfield,  44  Utah  446,  140  P. 
757;  Contra,  Henderson  v.  Coleman,  19  Wyo.,  183,  115  P. 
439. 


194  ADMISSIONS  BY  AGENTS 

Kansas.  Trainmen's  statements  as  to  cause  of  delay, 
made  at  the  time  they  are  charged  with  the  duty  of  pro- 
pelling the  train,  are  admissible. — Atchison,  T.  &  S.  F. 
R.  Co.  v.  Consolidated  Cattle  Co.,  59  Kan.  Ill,  52  P.  71. 
Utah.  Whatever  occurred  during  negotiations  by  an 
agent  resulting  in  execution  of  note  and  mortgage  are  ad- 
missible in  an  action  to  reform  the  instrument. — Marks 
v.  Taylor,  23  Utah  152,  63  P.  897. 

Past  Transactions  and  Events. 
Declarations  of  an  agent  are  not  admissible  against  the 
principal,  when  they  relate  to  a  past  transaction: 
Arkansas:  Caldwell  v.  Nichol,  97  Ark.  420,  134  S.  W.  622 
(admissions  of  night  watchman  of  defendant,  that  he 
found  the  gate  of  injured  horse's  stall  upon  the  animal). 
California:  Herman  Waldeck  &  Co.  v.  Pacific  Coast  S. 
S.  Co.,  2  Cal.  App.  167,  83  P.  158  (statements  as  to  manner 
of  stowing  pelts). 

Colorado:  Baldwin  v.  Central  Sav.  Bank,  17  Colo.  App. 
7,  67  P.  179. 

Kansas:  United  States  Express  Co.  v.  Anthony,  5  Kan. 
490;  Acme  Harvester  Co.  v.  Madden,  4  Kan.  App.  598,  46 
P.  319. 

Montana:  Wilson  v.  Sax,  21  Mont.  374,  54  P.  46  (admis- 
sions of  agent,  not  having  the  property  in  possession,  that 
a  sale  to  his  principal  was  not  bona  fide) ;  Missoula  Merc. 
Co.  v.  O'Donnell,  24  Mont.  65,  60  P.  991  (statement  of 
correctness  of  account  for  building  materials,  made  by 
agent  of  owner  after  they  were  furnished). 
Nebraska:  Union  Life  Ins.  Co.  v.  Haman,  54  Neb.  599, 
74  N.  W.  1090  (statement  to  another  after  the  event,  that 
a  payment  was  in  full  of  a  first  premium  on  a  policy) ; 
Clancy  v.  Barker,  71  Neb.  83,  9  N.  W.  440  (statement  by 
manager  of  hotel,  the  day  after  careless  shooting  of  plain- 
tiff's son  by  employee) ;  Sheridan  Coal  Co.  v.  C.  W.  Hall 
Co.,  87  Neb.  117,  127  N.  W.  218  (that  the  agent  considered 
an  order  for  coal  filled). 

South  Dakota:  Klingaman  v.  Fish  &  Hunter  Co.,  19  S.  D. 
139,  102  N.  W.  601  (of  servant  of  defendant,  that  a  pile  of 
lumber  which  fell  over  and  injured  plaintiff  belonged  to 
defendant). 


ADMISSIONS  BY  AGENTS  195 

Texas:  Texas  Co.  v.  Strange,  (Tex.  Civ.  App.),  154  S.  W. 
327  (as  to  liability  of  defendant  for  injuries  to  plaintiff). 
Washington:  Caldwell  Bros.  &  Co.  v.  Coast  Coal  Co.,  58 
Wash.  461,  108  P.  1075  (after  refusal  of  coal  washer,  decla- 
rations of  seller's  managing  agent  that  it  was  not  in  ac- 
cordance   with    contract). 

Declarations  by  an  agent  as  to  the  cause  of  an  accident, 
made  thereafter,  and  not  near  enough  to  be  considered  a 
part  of  the  occurrence,  are  inadmissible: 
Arkansas:  River,  Rail  &  Harbor  Const.  Co.  v.  Goodwin, 
105  Ark.  247,  151  S.  W.  267  (by  co-employee,  after  serv- 
ant's injury,  that  if  he  had  done  his  duty  the  injury  would 
not  have  happened). 

California:  Luman  v.  Golden  Ancient  Channel  Min.  Co., 
140  Cal.  700,  74  P.  307  (attributing  cause  of  accident  to 
miner  by  defective  machinery,  by  mine  superintendent 
several  minutes  after  injury). 

Kansas:  Walker  v.  O'Donnell,  59  Kan.  306,  52  P.  894. 
Texas:  International  &  G.  N.  R.  Co.  v.  Carr,  (Tex.  Civ. 
App.),  91  S.  W.  858  (by  railway  conductor,  as  to  killing 
of  animal  on  track,  two  days  after  accident) ;  Paris  & 
G.  N.  R.  Co.  v.  Lackey,  66  Tex.  Civ.  App.  267,  17  S.  W. 
540  (by  engineer,  the  day  after  running  into  a  fellow 
employee,  that  he  might  have  done  more  than  he  did  to 
avoid  the  accident). 

Declarations   of  a   servant   or   agent,    made   some   time 
after  an  accident,  that  it  was  the  result  of  his  own  negli- 
gence, are  inadmissible  to  charge  the  principal: 
Kansas:     Dodge   v.   Childs,    38    Kan.    526,    16   P.   815    (two 
hours  after). 

South  Dakota:  Wendt  v.  Chicago,  St.  P.  M.  &  O.  Ry.  Co., 
4  S.  D.  476,  57  N.  W.  226  (next  day  after  a  fire,  by  sec- 
tion foreman). 

Statements  by  an  agent  as  to  how  fires  set  by  alleged 
agents  started  are  inadmissible. — Johnson  v.  McLain  Inv. 
Co.,  79  Kan.  423,  100  P.  52;  Ward  v.  Powell,  (Tex.  Civ. 
App.),  127  S.  W.  851. 

Colorado.  Declarations  of  a  driver  of  a  horse  dying  on  a 
journey,  made  after  his  return,  are  not  admissible  to 
charge  his  principal,  the  hirer. — Anthony  v.  Estabrook,  1 
Colo.  75. 


196  ADMISSIONS  BY  AGENTS 

Declarations  of  foreman  of  a  ranch  as  to  quality  of 
hay  delivered  inadmissible,  when  not  made  during  the 
course  of  the  transaction. — Emerson  v.  Burnett,  11  Colo. 
App.  86,  52  P.  752. 

Kansas.  Statements  of  baggagemen  as  to  injuries  to 
trunk  not  admissible  unless  part  of  the  transaction. — 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilkinson,  55  Kan.  85,  39 
P.  1043. 

Declarations  of  a  servant,  that  a  tort  committed  by  him 
was  done  while  in  his  master's  employ  and  engaged  in 
the  transaction  of  the  business,  inadmissible. — Clark  v. 
Folscroft,  61  Kan.  446,  73  P.  86. 

Oregon.  Declarations  of  an  agent  long  after  the  trans- 
action are  mere  narratives  of  past  occurrences,  and  are 
not  admissible,  unless  it  appear  that  the  agent  was  author- 
ized to  make  the  admission  at  the  time  against  the  in- 
terest of  the  party  against  whom  they  are  offered.  (Decla- 
rations as  to  sowing  seeds  of  weeds  on  leased  land.) — 
Wade  v.  Amalgamated  Sugar  Co.,  (Or.),  132  P.  710. 
South  Dakota.  The  statements,  representations  or  admis- 
sions of  an  agent,  to  be  admissible  in  evidence  to  bind 
his  principal,  must  have  been  made  at  the  time  of  doing 
the  act  he  is  authorized  to  do,  and  must  have  been  con- 
cerning the  act  he  was  doing,  either  while  actually  en- 
gaged or  so  soon  thereafter  as  to  be  in  reality  a  part  of 
the  transaction,  and  to  constitute  a  part  of  the  res 
gestae.  (Statements  as  to  origin  of  fire,  by  section  fore- 
man the  next  day.) — Wendt  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  4  S.  D.  476,  57  N.  W.  226. 

Texas.  A  statement  of  a  section  boss,  made  to  a  witness 
a  day  or  two  after  the  occurrence,  that  the  train  set  the 
grass  on  Are,  is  inadmissible. — Ft.  Worth  &  D.  C.  Ry.  Co. 
v.  Dysart,  (Tex.  Civ.  App.),  136  S.  W.  1117. 
Utah.  A  conversation  had  several  days  after  a  contract 
has  been  made,  in  which  the  agent  is  said  to  have  given 
his  reasons  for  buying  off  and  changing  the  building  con- 
tractor, is  no  part  of  the  res  gestae. — Moyle  v.  Congrega- 
tional Society,  16  Utah  69,  50  P.  806. 

To  bind  the  principal  with  an  admission  of  his  agent, 
the  declaration  or  statement  of  the  agent  must  have  been 
made  within  the  scope  of  his  employment  and  during  the 


ADMISSIONS    BY   AGENTS  197 

transaction  of  business  by  him  for  the  principal  and  In 
relation  to  such  business.  (Statement  long  after  the 
transaction  as  to  purchase  of  iron  and  payment  for  it.)  — 
Utah  Foundry  &  Machine  Co.  v.  Utah  Gas  &  Coke  Co., 
42  Utah  533,  131  P.  1173. 

Authority  of  Agent. 

The  declarations  of  an  agent,  in  order  to  bind  the  prin- 
cipal, must  be  within  the  scope  of  his  agency. — Peterson 
Bros.  v.  Mineral  King  Fruit  Co.,  140  Cal.  624,  74  P.  162; 
Shoemaker  v.  Commercial  Union  Assur.  Co.,  75  Neb.  587, 
106  N.  W.  316;  Chickasha  Cotton  Oil  Co.  v.  Lamb  & 
Tyner,  28  Okl.  275,  114  P.  333. 

Declarations  of  an  alleged  agent  are  not  binding  upon 
the  principal  in  the  absence  of  proof  that  he  had  author- 
ity to  represent  the  principal. — Castner  v.  Rinne,  31  Colo. 
256,  72  P.  1052;  Mattis  v.  Hosmer,  37  Or.  523,  62  P.  17; 
Pumphrey  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  14  Tex.  Civ. 
App.  455,  37  S.  W.  360;  Rutan  v.  Huck,  30  Utah  217,  83 
P.  833;  Tim  Kinney  &  Co.  v.  First  Nat.  Bank,  10  Wyo. 
115,  67  P.  471. 

The  declarations  of  an  agent  as  to  matters  outside  of 
his  agency  are  inadmissible: 

Kansas:  Kilpatrick-Koch  Dry  Goods  Co.  v.  Kahn,  53  Kan. 
274,  36  P.  327  (declarations  of  one  employed  to  examine 
records  not  admissible  to  show  fraud  in  his  principal's 
purchase  of  goods) ;  J.  I.  Case  Plow  Works  v.  Pulsifer,  79 
Kan.  176,  98  P.  787  (that  a  certain  person  was  known  to 
be  in  a  bad  financial  condition). 

North  Dakota:  Rounseville  v.  Paulson,  19  N.  D.  446,  126 
N.  W.  221  (that  a  contract  had  been  settled). 
Arkansas.  The  admissions  of  tha  sender  of  a  telegram, 
made  after  its  sending,  are  not  admissible  as  being  those 
of  a  plaintiff  to  whom  it  was  sent. — Western  Union  Tele- 
graph Co.  v.  Scanlon,  115  Ark.  515,  171  S.  W.  916. 
Oregon.  Declarations  by  a  person  delivering  wool  to  a 
warehouse  as  to  the  ownership  of  the  sheep  from  which 
the  wool  was  clipped  are  inadmissible. — Goltra  v.  Penland. 
45  Or.  254,  77  P.  129. 

Texas.  A  statement  made  by  defendant's  ranch  hand 
while  driving  plaintiff's  horses  out  of  a  pasture,  that  if 


198  ADMISSIONS  BY  AGENTS 

they  were  again  found  in  the  pasture,  they  would  be  scat- 
tered so  they  would  never  be  found,  is  inadmissible  in  an 
action  for  damages. — Waggoner  v.  Snody,  36  Tex.  Civ. 
App.  514,  82  S.  W.  355. 

The  principal  is  not  responsible  for  the  personal  malice 
of  the  agent.  (Statements  of  office  deputy  of  sheriff  in 
enclosing  capias  to  another  county.)  —Little  v.  Rich,  55 
Tex.   Civ.  App.   326,   118   S.  W.   1077. 

Washington.  Statements  after  death  of  insured,  made  by 
his  agent  to  pay  premiums,  are  inadmissible  against  the 
beneficiary. — Gilmore  v.  Continental  Casualty  Co.,  58 
Wash.  203,  108  P.  447. 

Corporate  Officers. 
Declarations  of  corporate  officers  and  servants,  made  in 
the  performance  of  their  duties  may  be  used  as  admissions 
of  the  corporation. — Western  Inv.  &  Land  Co.  v.  First 
Nat.  Bank,  23  Colo.  App.  143,  128  P.  476;  J.  I.  Case  Plow 
Works  v.  Pulsifer,  79  Kan.  176,  98  P.  787;  Gulf,  C.  &  S. 
F.  Ry.  Co.  v.  Cunningham,  51  Tex.  Civ.  App.  368,  113 
S.  W.  767. 

Arkansas.  As  to  matters  outside  the  issues  the  state- 
ments of  corporate  officers  are  inadmissible. — Western 
Union  Tel.  Co.  v.  Woodard,  84  Ark.  323,  105  S.  W.  579. 
Colorado.  Admissions  by  the  manager  of  an  institution 
for  consumptives  in  a  prospectus,  stating  that  it  was  not 
a  charitable  institution,  are  inadmissible  to  determine  its 
status  as  a  charity. — Bishop  &  Chapter  of  Cathedral  of 
St.  John  the  Divine  v.  Treasurer  of  City  and  County  of 
Denver,  37  Colo.  378,  86  P.  1021. 

Kansas.  Statements  and  admissions  of  corporate  officers 
as  admissions  showing  notice  are  admissible. — St.  Louis 
&  S.  F.  Ry.  Co.  v.  Weaver,  35  Kan.  412,  11  P.  408. 
Nebraska.  The  fact  that  defendant's  general  manager, 
upon  demand  for  payment,  admitted  liability,  but  refused 
to  pay  solely  on  the  ground  that  the  company  was  insured, 
may  be  shown. — Egner  v.  Curtis,  Towle  &  Paine  Co., 
96  Neb.  18,  146  N.  W.  1032. 

Oregon.  Where  the  officers  of  a  local  society  were 
obliged  to  furnish  proofs  of  death  to  the  head  office,  their 
admissions  made  therein  are  evidence  against  the  society 


ADMISSIONS  BY  AGENTS  199 

in  an  action  upon  a  benefit  certificate. — Hildebrand  v. 
United  Artizans,  50  Or.  159,  91  P.  542. 

South  Dakota.  Statements  of  the  cashier  of  a  bank,  while 
a  note  and  mortgage  transferred  to  it  as  collateral  and  for 
collection  were  still  in  the  bank  uncollected,  that  the 
failure  to  collect  was  the  fault  and  neglect  of  the  bank, 
are  inadmissible. — Plymouth  County  Bank  v.  Gilman,  3 
S.  D.  170,  52  N.  W.  879. 

Texas.  Statements  and  representations  made  by  an  agent 
of  a  corporation  acting  within  the  scope  of  his  authority 
are  admissible  as  res  gestae. — Tex.  Mfg.  Co.  v.  Fitzgerald, 
(Tex.  Civ.  App.),  176  S.  W.  891. 

Utah.  Statements  as  to  the  cause  of  a  collision  made  in  a 
"service  letter"  given  to  a  discharged  employee  by  the 
division  superintendent  of  a  railroad,  authorized  to  give 
such  letter,  are  admissible  in  an  action  for  injuries  re- 
ceived in  such  collision. — Myers  v.  San  Pedro,  L.  A.  & 
S.  L.  R.  Co.,  39  Utah  198,  116  P.  1119. 

Public  Officers. 
Oklahoma.     The   declarations  of  a  public  officer  are  not 
admissible  to  bind  the  municipality,  unless  a  part  of  the 
res  gestae.— City  of  Wynnewood  v.  Cox,  31  Okl.  563,  122 
P.  528. 

Oregon.  A  councilman,  after  the  expiration  of  his  term, 
cannot  bind  the  city  by  his  admissions  of  knowledge  of 
a  defect  in  a  sidewalk  acquired  during  his  term. — Adkins 
v.  City  of  Monmouth,  41  Or.  206,  68  P.  737. 
Texas.  The  declaration  of  a  county  officer  that  the  county 
did  not  claim  land  under  a  specified  location,  and  that  it 
had  relocated  the  certificate  by  which  the  land  had  been 
located,  is  inadmissible  to  show  such  location. — Lamar 
County  v.  Talley,   (Tex.  Civ.  App.),  127  S.  W.  272. 

Attorneys. 
Kansas.  An  oral  admission  of  a  material  fact,  made  by  an 
attorney  in  his  opening  statement  to  the  jury,  may  be 
proved  on  a  subsequent  trial  of  the  same  cause,  if  it  ap- 
pears to  have  been  distinctly  and  formally  made,  and  in- 
tended as  a  general  admission  of  such  fact. — Missouri  & 
K.  Telephone  Co.  v.  Vandevort,  67  Kan.  269.  72  P.  771. 
Oregon.     An  attorney  has  no  implied   power  to  bind   his 


200  .ADMISSIONS  BY  AGENTS 

client  by  contract. — Toomey  v.  Casey,  72  Or.  290,  142 
P.  621. 

Husband,  Wife,  and  Children. 
Arkansas.     Statements  of  the  husband  that  certain  prop- 
erty was  his  do  not  bind  the  wife. — Martin  v.  Banks,  89 
Ark.  77,  115  S.  W.  928. 

Kansas.  The  acts  and  statements  of  the  husband  in  the 
absence  of  the  wife  cannot  bind  her  unless  done  or  made 
by  him  as  her  agent  while  transacting  her  business  and 
connected  therewith  as  part  of  the  res  gestae,  and  within 
the  scope  of  his  authority  as  such  agent. — Zandt  v.  Schuy- 
ler, 2  Kan.  App.  118,  43  P.  295. 

Nebraska.  Admissions  of  a  wife  in  regard  to  the  busi- 
ness of  her  husband's  farm,  made  in  his  absence,  are  in- 
admissible, unless  she  has  authority  to  control  the  busi- 
ness in  his  absence. — Norfolk  Nat.  Bank  v.  Wood,  33  Neb. 
113,  49  N.  W.  958. 

Texas.  Admissions  of  the  husband  are  inadmissible  in  a 
joint  action  to  recover  the  wife's  separate  property. — 
Hampshire  v.  Floyd,  39  Tex.  103. 

Statements  of  children  as  to  receipt  of  an  automobile 
are  inadmissible  to  bind  the  parents,  in  absence  of  proof 
of  agency. — Lange  v.  Interstate  Sales  Co.,  (Tex.  Civ.  App.), 
166  S.  W.  900. 

Principal   and   Surety. 

The  admissions  of  the  principal,  in  order  to  bind  the 
surety,  must  be  a  part  of  the  res  gestae,  or  acts  done  in 
T;he  performance  of  his  duty. — Jenness  v.  City  of  Black 
Hawk,  2  Colo.  578;  Cook  County  Liquor  Co.  v.  Brown,  31 
Okl.  614,  122  P.  167. 

Colorado.  Where  an  accused  forfeited  his  bail  bond  and 
his  surety  paid  over  to  accused's  lawyer  the  balance  of 
an  indemnifying  deposit,  taking  the  attorney's  note  for  the 
purpose  of  indemnity  against  certain  proceedings  which 
were  subsequently  disposed  of,  in  a  suit  on  the  note  the 
admissions  of  the  accused  that  the  balance  of  any  money 
left  in  the  surety's  hands  should  go  to  his  attorney,  was  im- 
properly excluded. — Hughes  v.  Spruance,  15  Colo.  208, 
25  P.  307. 

Idaho.  The  admissions  of  a  building  contractor  as  hav- 
ing no  claims  for  extras  are  admissible  against  his  surety 


ADMISSIONS  BY  AGENTS  201 

suing  to  enforce  a  materialman's  lien. — Sanders  v.  Keller, 
18  Ida.  590,  111  P.  350. 

Kansas.  In  an  action  for  damages  against  a  surety  on  a 
replevin  bond  the  affidavit  of  replevin  was  not  admissible 
as  evidence  of  value. — Edwards  v.  Bricker,  66  Kan.  241, 
71  P.  587. 

North  Dakota.  The  admission  of  an  insurance  agent  be- 
fore the  termination  of  his  agency  as  to  an  indebtedness 
to  the  company  is  binding  on  his  sureties. — Great  West 
Life  Assur.  Co.  v.  Shumway,  25  N.  D.  268,  141  N.  W.  479. 
Oklahoma.  The  surety  is  only  obligated  for  the  principal's 
acts,  and  not  for  his  language. — Cook  County  Liquor  Co. 
v.  Brown,  31  Okl.   614,   122  P.   167. 

Texas.  Admission  of  a  liquor  dealer  that  he  had  sold 
liquor  to  plaintiff's  husband,  inadmissible  to  bind  sureties. 
— Birkman  v.  Fahrenthold,  52  Tex.  Civ.  App.  335,  114  S. 
W.   428. 

Showing  Knowledge. 
Kansas.  Admissions  by  a  foreman  in  charge  of  a  depart- 
ment where  a  defective  appliance  was  used,  that  he  knew 
of  a  defect  in  the  appliance,  is  admissible  to  show  knowl- 
edge by  the  corporation. — Cudahy  Packing  Co.  v.  Hays, 
74  Kan.  124,  85  P.  811. 

North  Dakota.  Admissions  of  agent  of  vendor  of  animals, 
sent  to  prevent  their  destruction  by  state  veterinarian, 
that  he  knew  of  their  diseased  condition  prior  to  sale, 
admissible. — Needham  v.  H.  S.  Halverson  &  Co.,  22  N.  D. 
594,  135  N.  W.  203. 

Oregon.  Declarations  of  one  in  charge  of  the  reconstruc- 
tion of  the  sawmill  of  defendants,  relative  to  a  defec- 
tive lever  for  governing  the  movements  of  a  log  car- 
riage, by  which  plaintiff  was  subsequently  injured,  are  ad- 
missible to  show  notice  of  defendants. — Trickey  v.  Clark, 
50  Or.   516.   93   P.   457. 

PARTNERS  AND  JOINT  ADVENTURERS. 
After  prima  facie  case  as  to  partnership  is  made,  the 
admissions  and  conduct  of  the  several  partners  in  the 
course  of  the  partnership  business,  are  admissible  against 
the  others.— Dennis  v.  Kolm,  131  Cal.  91,  63  P.  141;  First 
Nat.  Bank  v.  Lesser,  9  N.  M.  604,  58  P.  345;  American 
Fire  Ins.  Co.  v.  Stuart,  (Tex.  Civ.  App.),  38  S.  W.  395. 


202  ADMISSIONS  BY  AGENTS 

Admissions  of  a  partner  after  dissolution  of  the  part- 
nership are  inadmissible. — Burns  v.  McKenzie,  23  Cal. 
101;  Contra,  Nalle  v.  Gates,  20  Tex.  315. 
California.  After  an  explosion  of  powder  on  the  premises 
of  a  firm,  an  admission  by  one  partner  binds  him  person- 
ally, and  if  made  in  the  course  of  the  firm's  business,  binds 
the  others.— Rathbun  v.  White,  157  Cal.  248,  107  P.  309. 

Colorado.  Declarations  of  one  partner,  made  after  an 
accident  occasioned  by  an  employee's  negligence,  by 
which  another  employee  was  injured,  tending  to  show 
knowledge  of  such  employee's  unfitness,  are  admissible. — 
Kindel  v.  Hall,  8  Colo.  App.  63,  44  P.  781. 
Nebraska.  Statements  by  one  party  to  a  joint  enterprise, 
made  while  borrowing  money  to  be  used  therein,  are  ad- 
missible.— Baker  v.  Union  Stock  Yards  Nat.  Bank,  63 
Neb.  801,  89  N.  W.  269. 

Washington.  The  declarations  of  a  partner  that  he  would 
use  and  did  use  lumber  for  a  specified  purpose  are  admis- 
sible against  the  others. — Merrill  v.  O'Bryan,  48  Wash. 
415,  93  P.  917. 

Wyoming.  Declarations  of  a  partner,  when  entering  into 
a  contract  in  his  own  name,  that  it  was  for  the  benefit  of 
his  firm,  are  admissible. — J.  J.  Crable  &  Son  v.  O'Connor, 
21  Wyo.  460,  133  P.  376. 

Persons  Jointly   Interested. 

(See  Art.  16.) 

Admissions  by  a  person  having  a  joint  interest  in  prop- 
erty are  admissible  whether  or  not  he  is  a  party  of  record. 
— Kilburn  v.  Ritchie,  2  Cal.  145;  Hardy  v.  DeLeon,  5  Tex. 
211;  Tuttle  v.  Turner,  28  Tex.  759. 

Declarations  of  one  legatee  or  devisee  as  to  the  mental 
capacity  of  a  testator,  or  of  undue  influence  over  him, 
are  inadmissible  to  bind  others  than  himself. — Dolbeer's 
Estate,  In  re,  149  Cal.  227,  86  P.  695;  De  Laveaga's  Estate, 
In  re,  165  Cal.  607,  133  P.  307;  Murphy  v.  Nett,  47  Mont. 
38,  130  P.  451;  Helsley  v.  Moss,  52  Tex.  Civ.  App.  57,  113 
S.  W.  599. 

California.  The  declarations  of  one  beneficiary  under  a 
will  are  not  admissible,  as  against  the  others,  upon  the 
matters   of   testamentary    capacity   or   undue   influence. — 


ADMISSIONS  BY  AGENTS  203 

Dolbeer's  Estate,   In  re,   153  Cal.   65,   296   P.  266;    De  La- 

veaga's  Estate,  In  re,  165  Cal.  607,  133  P.  307. 

Idaho.     Statements    by    one    of    several    defendants    in    a 

suit  on  a  joint  and  several  note  are  admissible. — Rosnagle 

v.  Armstrong,  17  Ida.  246,  105  P.  216. 

Kansas.     Partial  payment  by  a  debtor  on  a  note  will  not 

suspend  the  running  of  the  statute  of  limitations  in  favor 

of  the  other  debtors,   although  the   party  paying  be  the 

principal  debtor,  and  the  others  only  sureties. — Steele  v. 

Souder,  20  Kan.  39. 

The  declarations  of  a  co-defendant  are  admissible. — 
Boynton  v.  Hardin,  9  Kan.  App.  166,  58  P.  1007. 
Montana.  The  declarations  of  the  chief  beneficiary  under 
a  will  are  admissible,  where  the  only  other  legatees  were 
given  merely  nominal  sums  of  one  dollar  each. — Murphy 
v.  Nett,  47  Mont.  38,  130  P.  451. 

Nebraska.  Declarations  or  admissions  of  a  want  of  legal 
capacity  of  the  testator  can  only  be  shown  when  made  by 
a  sole  legatee  under  the  will;  but  declarations  of  an  execu- 
tor who  is  not  a  sole  legatee  are  not  admissible  as  against 
the  rights  of  other  legatees. — Stull  v.  Stull,  1  Neb.  (Unof.) 
380,  389,  96  N.  W.  196. 

New  Mexico.  Declarations  of  a  joint  payee  of  a  note 
as  to  its  execution,  made  after  an  indorsement  In  blank, 
are  inadmissible  to  impeach  its  validity,  in  a  suit  there- 
on by  the  other  payee. — Pearce  v.  Strickler,  9  N.  M.  467, 
54  P.  748. 

Washington.  In  an  action  on  a  policy  of  fire  insurance, 
brought  by  one  to  whom  the  policy  was  made  payable 
as  his  interest  might  appear,  admissions  made  by  persons 
to  whom  the  policy  was  payable  and  made  co-defendants 
with  the  insurer,  were  inadmissible. — Herzog  v.  Palatine 
Ins.  Co.,  36  Wash.  611,  79  P.  287. 

PROOF  AND  EFFECT. 
The  relationship  of  principal  and  agent  cannot  be  estab- 
lished by  the  declarations  of  the  alleged  agent: 
Colorado:  Castner  v.  Rinne,  31  Colo.  256,  72  P.  1052 
(statement  to  plaintiff  by  alleged  agent,  that  he  was  man- 
ager or  secretary  of  a  lodge,  and  giving  the  price  upon 
which  the  lodge  would  pay  the  regular  commission  in  case 
of  a  sale). 


f04  ADMISSIONS  BY  AGENTS 

Oklahoma:  Chickasha  Cotton  Oil  Co.  v.  Lamb  &  Tyner, 
28  Okl.  275,  114  P.  333  (statements  of  messenger  who 
called  plaintiffs  as  physicians,  that  he  had  been  sent  by 
the  president  or  manager  of  defendant  company,  and  that 
the  company  would  pay  for  their  services). 
Colorado.  An  agent  who  purchased  mining  stock  for 
plaintiff  may  testify  as  to  admission  made  by  defendant 
after  the  falsity  of  his  representations  was  discovered. — 
Geraghty  v.  Randall,  18  Colo.  App.  194,  70  P.  767. 

Recitals  in  deed  that  signer  is  attorney  in  fact  and  that 
his  power  of  attorney  empowered  him  to  sell  and  convey 
an  interest  in  a  mine,  are  admissible,  where  there  is  in- 
dependent evidence  of  such  agency. — Mulford  v.  Rowland, 
45   Colo.   172,   100  P.   603. 

Texas.  Although  an  agency  cannot  be  proven  by  the 
declarations  of  the  alleged  agent,  they  are  a  circumstance 
in  connection  with  other  facts  that  will  tend  to  prove  that 
he  was  in  fact  an  agent. — Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Cun- 
ningham, 51  Tex.  Civ.  App.  368,  113  S.  W.  767. 

The  evidence  of  an  agent  in  court  as  to  his  agency 
does  not  come  within  the  rule  that  agency  cannot  be  es- 
tablished by  the  declarations  of  the  agent. — Autrey  v. 
Linn,  (Tex.  Civ.  App.),  138  S.  W.  197. 
Utah.  Before  the  declarations  of  an  agent  can  be  ad- 
mitted in  evidence,  the  transaction  itself  must  be  material 
and  admissible. — Meyers  v.  San  Pedro,  L.  A.  &  St.  L.  R. 
Co.,  36  Utah  307,  104  P.  736. 

It  must  first  be  shown  that  an  agency  existed. — With- 
erow  v.  Mystic  Toilers,  42  Utah  360,  130  P.  58. 

NOTE   XI. 
(To   Article    17.) 

The  subject  of  the  ralevancy  of  admissions  by  agents  is 
rendered  difficult  by  the  vast  variety  of  forms  which  agency 
assumes,  and  by  the  distinction  between  an  agent  for  the 
purpose  of  making  a  statement  and  an  agent  for  the  purpose 
of  transacting  business.  If  A  sends  a  message  by  B,  B's 
words  in  delivering  it  are  in  effect  A's;  but  B's  statements  in 
relation  to  the  subject  matter  .of  the  message  have,  as  such, 
no  s^ec:al  value.  A's  own  statements  are  valuable  if  they 
suggest  an  inference  which  he  afterwards  contests  because 
they  are  against  his  interest;  but  when  the  agent's  duty  is 
rtor.e  he  has  no  special   interest  in   the  matter. 

The  principle  as  to  admissions  by  agents  is  stated  and  ex- 
plained by  Sir  W.  Grant  in  Fairlie  v.  Hastings,  10  Ve.  126-127. 


ADMISSIONS  BY  STRANGERS  205 

Article  18.* 
admissions  by  strangers. 

Statements  by  strangers  to  a  proceeding  are 
not  relevant  as  against  the  parties  except  in  the 
cases  hereinafter  mentioned,  (a) 

In  actions  against  sheriffs  for  not  executing 
process  against  debtors,  statements  of  the  debtor 
admitting  his  debt  to  be  due  to  the  execution 
creditor  are  deemed  to  be  relevant  as  against  the 
sheriff,  (b) 

In  actions  by  the  trustees  of  bankrupts  an  ad- 
mission by  the  bankrupt  of  the  petitioning  cred- 
itor's debt  is  deemed  to  be  relevant  as  against 
the  defendant,  (c) 

Nebraska.  In  replevin  against  attaching  creditors  by  a 
vendor  of  goods  claimed  to  have  been  bought  under  fraud- 
ulent representations  as  to  financial  condition,  sufficient 
to  justify  a  rescission  of  the  sale,  the  debtor's  declara- 
tions tending  to  show  the  falsity  of  such  representations 
are  inadmissible. — Bentley  v.  Woolson  Spice  Co.,  1  Neb. 
(Unof.)  558,  95  N.  W.  803. 

The  declaration  of  the  payee  of  a  promissory  note,  who 
is  not  a  party  to  the  action,  and  who  has  no  interest  in 
the  result  of  the  litigation  is  inadmissible  in  evidence 
for  the  purpose  of  disproving  his  ownership. — Piper  v. 
Neylon,  81  Neb.  481,  116  N.  W.  159. 

Oregon.  In  a  prosecution  for  larceny  of  a  horse,  admis- 
sions of  the  prosecuting  witness  that  the  defendant  was 
the  owner  of  the  animal  are  inadmissible. — State  v.  Deal, 
41  Or.  437,  70  P.  534. 

a  Coole  v.   Braham,   3   Ex.   183. 

b  Kempland  v.  Macaulay,  Peake,  95;  Williams  v.  Bridges, 
2  Star.   42. 

c  Jarrett  v.  Leonard,  2  M.  &  S.  265  (adapted  to  the  new 
law  of  bankruptcy). 


*  See  Note  at  end  of  Article. 


206  ADMISSION  BY  PERSON 

NOTE   XII. 

(To  Article   18.) 

See,  for  a  third  exception   (which  could  hardly  occur  now), 
Clay  v.  Langslow,  M.  &  M.  45. 


Article  19.* 
admission  by  person  referred  to  bt  party. 

When  a  party  to  any  proceeding  expressly  re- 
fers to  any  other  person  for  information  in  ref- 
erence to  a  matter  in  dispute,  the  statements  of 
that  other  person  may  be  admissions  as  against 
the  person  who  refers  to  him.  (a) 

Illustration. 
The  question  is,  whether  A  delivered  goods  to  B.     B  says, 
"If  C"   (the  carman)   "will  say  that  he  delivered  the  goods,  I 
will  pay  for  them."     C's  answer  may  as  against  B,  be  an  ad- 
mission.— 1 

PERSONS   REFERRED  TO. 

Nebraska.  Statements  of  a  patient,  to  whom  witness  was 
referred  by  the  head  nurse  of  a  hospital,  as  to  how  and 
where  he  got  the  poison  from  which  he  was  suffering, 
and  reported  to  the  nurse  who  assented  thereto,  are  ad- 
missible in  an  action  against  the  hospital  for  the  death 
of  the  patient  by  the  negligence  of  its  servants  in  leav- 
ing poison  accessible. — Broz  v.  Omaha  Maternity  &  Gen- 
eral Hospital  Ass'n,  96  Neb.  648,  148  N.  W.  575. 
Oklahoma.  One  of  two  parties  engaged  in  a  business 
transaction,  speaking  through  an  interpreter,  may  testify 
as  to  statements  made  by  the  interpreter  purporting  to 
be  statements  of  the  other. — Miller  v.  Lathrop,  50  Minn. 
91,  52  N.  W.  274;  Terrapin  v.  Barker,  26  Okl.  93,  109  P. 
931. 


a   [2    Wigmore    Ev„    §    1070.] 
1   Daniel  v.  Pitt,  1  Camp.  366,  n. 


*  See  Note  at  end  of  Article. 


I 


ADMISSIONS  MADE  WITHOUT  PREJUDICE       207 

Texas.  The  declarations  of  a  person  referred  to  by  a 
station  agent,  made  to  a  shipper,  as  to  when  a  train 
would  leave,  and  the  cause  of  a  delay,  are  admissible 
against  the  railroad  company  in  an  action  by  the  shipper 
for  negligent  delay. — Missouri,  K.  &  T.  Ry.  Co.  v.  Pettit, 
54  Tex.  Civ.  App.  358,  117  S.  W.  894. 

Washington.  Where  a  person  refers  a  party  to  his  attor- 
ney for  information,  the  statement  of  the  attorney  is 
competent  evidence  against  him,  since  he  has  made  the 
attorney  his  accredited  agent  for  that  purpose. — Plath  v. 
Mullins,  87  Wash.  403,  151  P.  811. 

NOTE    XIII. 

(To  Article  19.) 

This  comes  very  near  to  the  case  of  arbitration.  See,  as 
to  irregular  arbitration  of  this  kind,  1  Ph.  Ev.  383;  T.  E.  ss. 
689-690. 

Article  20.* 

admissions  made  without  prejudice. 

No  admission  is  deemed  to  be  relevant  in  any- 
civil  action  if  it  is  made  either  upon  an  express 
condition  that  evidence  of  it  is  not  to  be  given,  (a) 
or  under  circumstances  from  which  the  judge 
infers  that  the  parties  agreed  together  that  evi- 
dence of  it  should  not  be  given,  (b)  or  if  it  was 
made  under  duress,  (c) 

OFFERS   OF  COMPROMISE. 
Offers  made  during  negotiations  looking  towards  a  com- 
promise, and   made  only  for  the  purpose  of  avoiding  liti- 
gation,   are    inadmissible. — Denver    &    Rio    G.    R.    Co.    v. 

a  Cory  v.  Bretton,  4  C.  &  P.   462. 
b  Paddock  v.  Forester,  5  M.  &  G.  918. 

c  Stockfleth  v.  De  Tastet,  per  Ellenborough,  C.  J.,  4   Camp 
10. 


*  See  Note  at  end  of  Article. 


208       ADMISSIONS  MADE  WITHOUT  PREJUDICE 

Brennaman,  45  Colo.  264,  100  P.  414;  Donley  v.  Bailey, 
48  Colo.  370,  110  P.  65;  Moore  v.  Evans,  24  Ida.  153,  132 
P.  971;  City  of  Anadargo  v.  Argo,  35  Okl.  115,  128  P.  500; 
Busch  v.  South  Dakota  Cent.  Ry.  Co.,  29  S.  D.  44,  135  N. 
W.  757;  Southwestern  Ins.  Co.  v.  Woods  Nat.  Bank, 
(Tex.  Civ.  App.),  107  S.  W.  114;  Gulf,  C.  &  S.  F.  Ry.  Co. 
v.  Bagby,  (Tex.  Civ.  App.),  127  S.  W.  254;  Texas  Co.  v. 
Strange,  (Tex  Civ.  App.),  154  S.  W.  327;  Iowa  Mfg.  Co. 
v.  Taylor,  (Tex.  Civ.  App.),  157  S.  W.  171;  San  Antonio 
&  A.  P.  Ry.  Co.  v.  Tucker,  (Tex.  Civ.  App.),  157  S.  W. 
175;  Tabet  Bros.  Co.  v.  Higginbotham,  (Tex.  Civ.  App.), 
170  S.  W.  118;  McKinney  v.  Carson,  35  Utah  180,  99  P. 
660;  National  Bank  of  Commerce  v.  Gougar,  51  Wash. 
204,  98  P.   607. 

Colorado.  An  offer  to  pay  any  sum  by  way  of  compro- 
mise in  settlement  of  a  claim  is  not  admissible  in  evi- 
dence against  the  party  making  the  offer  as  showing  an 
acknowledgment  of  liability. — Chicago,  B.  &  Q.  R.  Co.  v. 
Roberts,  26  Colo.  329,  57  P.  1076. 

"We  owe  it  and  I  will  have  to  pay  it."  Held  not  an 
offer  to  compromise  but  an  acknowledgment  of  the  debt. 
—Miller  v.  Kinsel,  20  Colo.  App.  346,  78  P.  1075. 

Admissible  where  bearing  directly  upon  defendant's 
knowledge  of  an  alleged  false  warranty  in  an  insured's 
application. — Pacific  Mut.  Life  Ins.  Co.  v.  Van  Fleet,  47 
Colo.  401,  107  P.  1087. 

Idaho.  Though  an  offer  of  compromise  is  not  admis- 
sible in  evidence,  yet  an  independent  admission  of  a  fact, 
such  as  the  handwriting  of  a  party,  or  that  a  certain 
item  of  an  account  is  correct,  may  be  introduced. — 
Whitney  v.  Cleveland,  13  Idaho  558,  91  P.  176. 
Washington.  Whether  the  offer  was  made  on  the  faith 
of  a  compromise  is  usually  a  question  of  fact  for  the  jury. 
—Long  v.  Pierce  County,  22  Wash.  330,  61  P.  142. 


NOTE    XIV. 

(To    Article    20.) 

See  more  on  this  subject  in  1  Ph.  Ev.  326-328;  T.  B.  ss.  702, 
720-723;    R.    N.    P.    66;    [2   Wigmore   Ev.,    §    1061.] 


CONFESSIONS   DEFINED  209 

Article  21. 

confessions  defined. 

A  confession  is  an  admission  made  at  any  time 
by  a  person  charged  with  a  crime,  stating  or  sug- 
gesting the  inference,  that  he  committed  that 
crime.  Confessions,  if  voluntary,  are  deemed  to 
be  relevant  facts  as  against  the  persons  who 
make  them  only,  (a) 

Illustrations, 
(a)    [Accused   was   arrested,   and    upon   asking   for   what   he 
was    apprehended    was    informed    that    it    was    for    robbing    a 

Chinaman.     He  replied,   "The  next  almond-eyed  I  rob 

I  will  kill  and  get  him  out  of  the  way."  Held,  not  a  confes- 
sion and  admissible,  though  it  did  not  appear  that  he  had 
been  properly  cautioned,  as  required  to  render  a  confession 
admissible.] — 1 

NATURE    OF    CONFESSIONS. 

California.  Statements  of  accused  to  witnesses  as  to  the 
departure  of  deceased  for  San  Francisco,  and  of  the  ap- 
pointment of  accused  and  deceased  to  meet  at  that  place, 
etc.,  are  not  confessions. — People  v.  Strong,  30  Cal.  151, 
157. 

A  confession  receivable  only  after  proof  that  it  was 
made  voluntarily  is  restricted  to  an  acknowledgment  of 

a  ["The  principle  upon  which  a  confession  is  treated  as 
sometimes  inadmissible,  is  that  under  certain  conditions  It 
becomes  untrustworthy  as  testimony.  The  principle  is  the 
same  as  that  upon  which  statements  based  on  memoranda, 
or  testimony  given  while  intoxicated,  or  testimony  given 
upon  the  suggestion  of  a  leading  question,  are  treated  as 
dubitable  and  may  under  circumstances  be  excluded.  In 
criminal  charges,  the  higher  degree  of  caution  always  exer- 
cised by  the  law  In  favor  of  the  accused  prompts  to  a  greater 
strictness  in  excluding  suspicious  testimony,  and  the  degree 
of  likelihood  of  its  incorrectness  need  be  much  less  than  in 
other  instances;  yet  the  principle  is  the  same."  1  Wigmore 
Ev„   §   822.] 

1    [Griffin   v.    State,    (Tex.    Cr.    R.),    20    S.    W.    552.] 


210  CONFESSIONS   DEFINED 

defendant's  guilt,  and  the  word  does  not  apply  to  a  state- 
ment made  by  the  defendant  of  facts  which  tend  to  es- 
tablish his  guilt. — People  v.  Parton,  49  Cal.  632  (that  ac- 
cused was  sorry  for  ruining  witness's  daughter). 

Defendant's  reply,  "Well,  damned  if  it  don't,"  made  in 
response  to  a  remark  of  the  constable  that  the  finding 
of  the  stolen  property  on  defendant's  premises  looked  kind 
of  suspicious,  is  not  a  confession. — People  v.  Hickman, 
113  Cal.  80,  86,  45  P.  175. 

Denial  of  defendant  that  he  had  stolen  certain  money 
from  one  J.,  and  accounting  for  its  possession  by  claim- 
ing to  have  found  it,  not  a  confession. — People  v.  Ammer- 
man,  118  Cal.  23,  50  P.  15. 

Admission  of  accused  on  being  taken  to  his  barn  where 
the  body  of  a  missing  woman  was  found,  that  he  had 
buried  the  body,  is  not  a  confession. — People  v.  Wilkins, 
158  Cal.  530,  111  P.  612. 

A  distinction  exists  in  legal  contemplation  between  ad- 
missions and  confessions.  A  confession  is  a  voluntary 
declaration  made  by  a  person  who  has  committed  a  crime, 
of  the  agency  or  participation  he  had  in  the  same,  and  is 
restricted  to  an  acknowledgment  of  guilt;  but  an  admis- 
sion of  a  fact  not  in  itself  involving  a  criminal  intent  is 
not  to  be  rejected  as  evidence  without  preliminary  proof 
merely  because  it  may,  when  connected  with  other  facts, 
tend  to  establish  guilt. — People  v.  Ford,  25  Cal.  App.  388, 
143  P.  1075. 

Statements  of  an  accused  denying  guilt  and  setting  up 
an  alibi  are  not  confessions,  and  their  voluntary  character 
need  not  be  shown. — People  v.  Weston,  169  Cal.  393,  146 
P.  871. 

Colorado.  "The  reason  uniformly  assigned  for  the  exclu- 
sion of  confessions  extorted  by  promises  or  threats  is  the 
unreliable  character  of  confessions  delivered  under  such 
influences.  That  the  courts  pay  no  attention  to  the  in- 
decency of  subjecting  an  unfortunate  person  accused  of 
crime  to  flattery,  torture,  or  artifice,  in  order  to  induce  in- 
culpatory statements  is  well  established, — the  rule  rest- 
ing solely  upon  the  supposed  probability  of  the  untruth 
of  the  confessions." — Beery  v.  United  States,  2  Colo.  210. 


CONFESSIONS   DEFINED  211 

A  confession  is  an  admission  made  by  a  party  who  has 
committed  a  crime  or  misdemeanor  of  his  agency  or  par- 
ticipation therein,  and  is  generally  restricted  to  acknowl- 
edgment of  guilt.— Mora  v.  People,  19  Colo.  255,  35  P.  179. 

A  declaration  made  by  one  accused  of  crime,  denying 
any  criminal  act,  and  explaining  suspicious  circumstances 
for  his  own  advantage,  is  not  a  confession,  and  does  not 
fall  within  the  rule  that  confessions  must  be  voluntary  to 
be  admissible.— Mora  v.  People,  19  Colo.  255,  35  P.  179. 

Statements  of  accused  that  he  was  at  a  certain  other 
place  when  the  crime  was  committed,  are  not  a  confession. 
— Byram  v.  People,  49  Colo.  533,  113  P.  528. 
Kansas.  Statements  and  declarations  by  a  defendant  in  a 
criminal  action,  in  denial  of  guilt,  while  a  witness  before 
a  grand  jury,  are  not  confessions,  within  the  rule  requir- 
ing them  first  to  be  shown  to  have  been  made  voluntarily 
before  they  are  competent  evidence  against  him. — State 
v.  Campbell,  73  Kan.  688,  85  P.  784. 

Montana.  Admission  of  the  killing,  and  endeavor  of  de- 
fendant to  show  that  he  was  obliged  to  kill  to  save  his 
own  life,  are  not  a  confession. — State  v.  Cadotte,  17  Mont. 
315,  42  P.  857. 

Statements  by  one  arrested  by  the  son  of  the  owner 
for  stealing  animals,  that  he  would  not  have  done  so  if 
the  son  had  not  knocked  him  down  in  town,  and  offering 
$100  to  let  him  out  of  it,  are  not  a  confession,  and  do 
not  require  preliminary  proof  of  freedom  from  threats  or 
promises. — State   v.   Kneeland,   39   Mont.   506,   104   P.   513. 

Mere  inculpatory  statements,  not  directly  admitting  the 
crime,  are  not  a  confession. — Burnett  v.  State,  86  Neb. 
11,  124  N.  W.  927. 

Nebraska.  Taylor  v.  State,  37  Neb.  788,  56  N.  W.  623, 
(statement  of  accused  to  a  third  person,  in  presence  of 
witness,  that  he  had  given  the  gun  to  the  third  person 
after  he  had  done  the  job,  admissible.) 

Oregon.  Statements  and  testimony  of  defendant  explain- 
ing the  circumstances  connected  with  his  possession  of  a 
stolen  cow  and  steer,  made  for  the  purpose  of  rebutting 
an  inference  of  criminal  intent,  are  not  a  confession,  so 
as  to  justify  a  charge  assuming  that  such  statements  and 


212  CONFESSIONS  DEFINED 

testimony  amounted  to  confessions. — State  v.  Heidenreich, 
29  Or.  381,  45  P.  755. 

Whenever  the  statements  or  declarations  of  the  ac- 
cused, voluntarily  made,  are  of  such  facts  as  involve 
necessarily  the  commission  of  a  crime,  or  in  themselves 
constitute  a  crime,  then  the  facts  admitted  import  guilt, 
and  such  admissions  may  properly  be  denominated  con- 
fessions. Exculpatory  statements,  made  in  the  same  con- 
nection, if  believed,  may  excuse  or  justify,  but  do  not  re- 
duce the  declaration  from  a  confession  to  an  omission  only. 
—State  v.  Porter,  32  Or.  135,  49  P.  964. 

A  confession  may  be  a  naked  statement  that  accused  is 
guilty  of  the  crime,  or  it  may  be  a  full  statement  of  the 
circumstances  of  its  commission,  including  his  part  in  it. 
—State  v.  Brinkley,  55  Or.  134,  105  P.  708. 
Texas.  A  confession  is  a  voluntary  admission  or  declara- 
tion by  a  person  of  his  agency  or  participation  in  a  crime, 
and  exculpatory  statements  as  to  his  whereabouts  at  the 
time  of  the  crime  are  not  a  confession  and  need  not  be 
proved  as  required  by  statute. — Whorton  v.  State,  (Tex. 
Cr.  R.),  152  S.  W.  1082. 

A  statement  as  to  his  age  by  one  in  jail  charged 
with  theft,  given  after  warning,  is  admissible  upon  his 
trial  for  the  subsequent  murder  of  an  officer  while  try- 
ing to  escape.— Henry  v.  State,  3  Tex.  Cr.  R.  306,  42  S. 
W.    559. 

Utah.  A  statement  by  a  prisoner  that  she  was  the  wife  of 
one  F.,  made  to  the  sheriff  when  he  was  interrogating  her 
for  purposes  of  the  record  that  he  was  required  to  keep, 
is  not  a  confession,  although,  in  order  to  convict  her  of 
the  offense  charged  it  was  necessary  to  show  that  she  had 
a  husband  living.— State  v.  Moore,  36  Utah  531,  105  P.  293. 

STATUTORY  PROVISIONS. 

In  some  states  the  common  law  rules  as  to  the  admis- 
sion of  confessions  have  been  confirmed  or  modified  by 
statute.— 1  Wigmore  Ev.,   §  831. 

Texas.  By  statute,  when  accused  is  in  custody,  a  con- 
fession is  only  admissible  when  made  in  writing  after 
caution  given;  and  it  must  show  on  its  face  that  accused 
was  warned  by  the  person  to  whom  it  was  made. — Henry 
v.  State,  38  Tex.  Cr.  R.  306,  42  S.  W.  559;  Burton  v.  State, 


CONFESSIONS   DEFINED  213 

62  Tex.  Cr.  R.  402,  137  S.  W.  1145;  Fowler  v.  State, 
71  Tex.  Cr.  R.  1,  158  S.  W.  1117;  Hill  v.  State,  72  Tex.  Cr. 
ft.  109,  161  S.  W.  118. 

The  writing  must  show  the  name  of  the  person  by  whom 
accused  was  warned  and  the  person  to  whom  the  state- 
ment was  made. — Jenkins  v.  State,  (Tex.  Cr.  R.),  131  S. 
W.  542;  Henzen  v.  State,  62  Tex.  Cr.  R.  336,  137  S.  W.  1141; 
Overstreet  v.  State.   (Tex.  Cr.  R.),  150  S.  W.  899. 

By  statute  oral  confessions  made  when  accused  is  in 
custody  are  inadmissible,  but  they  must  be  reduced  to 
writing  and  signed  by  accused,  after  warning. — Gaston  v. 
State,  55  Tex.  Cr.  R.  270,  116  S.  W.  582;  Brown  v.  State, 
71  Tex.  Cr.  R.  45,  158  S.  W.  533;  Chism  v.  State,  71  Tex. 
Cr.  R.  389,  159  S.  W.  1185. 

The  writing  must  be  complete  in  itself  and  cannot  be 
supplemented  by  oral  evidence. — Overstreet  v.  State,  (Tex. 
Cr.  R.),  150  S.  W.  899. 

Or  by  the  certificate  of  a  notary  public. — Robertson  v. 
State,  54  Tex.  Cr.  R.  21,  111  S.  W.  741. 

A  confession  not  made  in  accordance  with  statute  is  in- 
admissible, even  for  impeachment  purposes. — Prata  v. 
State,    (Tex.  Cr.  R.),   172  S.  W.  974. 

Washington.     A  confession   made   under  the  influence   of 
fear  produced  by  threats  is  inadmissible,  under  the  stat- 
ute.—State  v.   Miller,   68  Wash.   239,  122  P.  1066. 
CO-DEFENDANTS. 

A  confession  by  a  conspirator  after  the  conspiracy  is 
ended  is  inadmissible  against  his  co-conspirators. — Peo- 
ple v.  Collum,  122  Cal.  186,  54  P.  589;  Watson  v.  State,  48 
Tex.  Cr.  R.  323,  87  S.  W.  1158. 

A  confession  made  by  one  of  two  defendants  under  ar- 
rest, made  in  the  presence  of  the  other  who  remains  silent, 
is  inadmissible  against  the  other.— Wright  v.  State,  37 
Tex.  Cr.  R.  627,  40  S.  W.  491;  State  v.  McCullum,  18  Wash. 
394,  51  P.  1044. 

Nebraska.  Confessions  or  admissions  of  guilt,  made  by 
one  of  two  persons  charged  with  a  criminal  offense,  are 
admissible  against  him;  but  they  are  not  ordinarily  ad- 
missible as  against  his  alleged  accomplice,  unless  they  are 
made  in  his  presence,  or  are  absented  to  by  him. — Bur- 
nett v.  State,  86  Neb.  11,  124  N.  W.  927. 


214  CONFESSIONS  DEFINED 

CORROBORATION. 

Circumstances  corroborating  a  confession  are  neces- 
sary: 

Idaho:     State  v.  Downing,  23  Ida.  540,  130  P.  461. 
Texas:     Nolan  v.  State,  60  Tex.  Cr.  R.  5,  129  P.  1108  (the 
giving  birth  to  a  child  not  a  corroboration  of  confession 
of  incest);   Meek  v.  State,  71  Tex.  Cr.  R.  433,  160  S.  W. 
698. 

California.  Where  the  corpus  delicti  is  otherwise  satis- 
factorily proven,  a  defendant  may  be  convicted  on  his  un- 
corroborated confession,  the  corpus  delicti  being  consid- 
ered as  a  circumstance  sufficiently  corroborating  the  con- 
fession.—People  v.  Ford,  25  Cal.  App.  388,  143  P.  1075. 
Nebraska.  Where  the  offense  charged  had  been  proven, 
confessions  of  accused  were  competent,  as  tending  to  con- 
nect him  with  the  crime. — Chezem  v.  State,  56  Neb.  496, 
76  N.  W.  1056. 

Oregon.  The  fact  that  deceased  had  money  before  her 
murder  and  that  accused  was  in  possession  of  large  sums 
thereafter  is  admissible  to  corroborate  his  confession. — 
State  v.  Hansen,  25  Or.  391,  35  P.  976. 

Where  the  building  described  in  an  indictment  for  arson 
is  conceded  to  have  been  burned,  and  there  were  sufficient 
circumstances  to  show  that  it  was  of  incendiary  origin, 
the  confession  of  defendant  was  admissible. — State  v. 
Rogoway,  45  Or.  601,  78  P.  987. 

Texas.  The  fact  that  witnesses  tracked  a  pony,  with  foot- 
prints measuring  the  same  as  defendant's,  from  near  de- 
ceased's home  is  admissible  to  support  a  confession. — 
Hampton  v.  State,   (Tex.  Cr.  R.),  183  S.  W.  887. 

Corpus  Delicti. 
No  conviction  may  be  had  upon  confession  alone,  with- 
out proof  of  the  corpus  delicti. — People  v.  Vertrees,  169 
Cal.  404,  146  P.  890;  People  v.  Tomalty,  14  Cal.  App.  224, 
111  P.  513;  Roberts  v.  People,  11  Colo.  214,  17  P.  637; 
State  v.  Downing,  23  Ida.  540,  130  P.  461;  Davis  v.  State, 
51  Neb.  301,  70  N.  W.  984;  Shires  v.  State,  2  Okl.  Cr. 
89,  99  P.  1100;  Daugherty  v.  State,  (Tex.  Cr.  R.),  182  S. 
W.  306;  State  v.  Sheffield,  45  Utah  426,  146  P.  306;  Curran 
v.  State,  12  Wyo.  553,  76  P.  577. 


CONFESSIONS   DEFINED  215 

Where  the  corpus  delicti  is  proved  the  defendant  may 
be  convicted  upon  his  confession  alone. — People  v.  Ford, 
25  Cal.  App.  388,  143  P.  1075;  Burk  v.  State,  50  Tex.  Cr.  R. 
185,  98  S.  W.  1064. 

The  confession  may  be  considered  with  other  facts  and 
circumstances  in  evidence  to  establish  the  corpus  delicti. 
— McLemore  v.  State,  111  Ark.  457,  164  S.  W.  119;  People 
v.  Loper,  161  Cal.  367,  119  P.  500;  Meek  v.  State,  71  Tex. 
Cr.  R.  433,  160  S.  W.  698;  Wilganowski  v.  State,  (Tex. 
Cr.  R.),  180  S.  W.  692;  State  v.  Scott,  86  Wash.  296,  150 
P.  423;  Contra,  People  v.  Rowland,  12  Cal.  App.  6,  106 
P.  428. 

California.  Upon  a  prosecution  for  obtaining  money  by 
giving  as  security  therefor  a  deed  to  a  tract  of  land  in 
Minnesota  which  accused  claimed  to  own,  defendant's  ad- 
missions, that  he  did  not  own  any  land  as  represented,  are 
not  sufficient  to  convict,  there  being  no  other  proof  of  the 
corpus  delicti. — People  v.  Simonsen,  107  Cal.  345,  40 
P.  440. 

Proof  of  the  corpus  delicti  need  not  in  any  manner  con- 
nect defendant  with  the  crime. — People  v.  Tarbox,  115  Cal. 
57,  46  P.  896. 

The  corpus  delicti  is  fully  established  when  it  is  shown 
that  a  human  being  has  been  deprived  of  life  by  criminal 
agency,  and  defendant's  admissions  that  he  was  at  the 
scene  of  the  murder  are  thereafter  admissible. — People  v. 
Moran,  144  Cal.  48,  77  P.  777. 

It  is  not  necessary  that  proof  of  the  corpus  delicti  con- 
nect defendant  with  the  commission  of  the  crime,  to  au- 
thorize proof  of  confessions. — People  v.  Ford,  25  Cal.  App. 
388,  143  P.  1075. 

Oregon.  Statements  by  accused  that  he  bought  the  four 
cows  and  three  calves  in  question,  and  that  he  butchered 
the  calves,  are  statements  of  exculpation  and  not  confes- 
sions, but  are  admissible  to  prove  facts  tending  to  estab- 
lish the  corpus  delicti. — State  v.  Brinkley,  55  Or.  134,  105 
P.  708. 

Texas.  A  confession  that  defendant  sold  whiskey  to  sev- 
eral named  parties  will  not  support  a  conviction,  in  the 
absence  of  other  proof  of  a  sale. — Brice  v.  State,  (Tex. 
Cr.   R.),   179    S.   W.   1178. 


216o  CONFESSIONS   DEFINED 

Testimony  that  defendant  confessed  to  having  fired  a 
pistol  at  a  certain  time  and  place  is  insufficient  to  con- 
vict of  unlawfully  carrying  a  pistol,  where  there  is  no  other 
proof  that  he  had  a  pistol. — Daugherty  v.  State,  (Tex.  Cr. 
R.),   182   S.  W.   306. 

Utah.  A  confession  of  illicit  intercourse  is  not  alone  suf- 
ficient to  prove  the  corpus  delicti  of  adultery. — State  v. 
Sheffield,  45  Utah  426,  146  P.  306. 

Wyoming.  The  corpus  delicti  may  be  proved  by  circum- 
stantial evidence.  (Loss  of  goods  from  railroad  cars  in 
transit  and  the  discovery  of  the  same  character  of  goods 
under  a  house  occupied  by  defendants,  who  were  brake- 
men  employed  on  the  route  from  which  such  goods  had 
been  missed.)— Curran  v.  State,  12  Wyo.  553,  76  P.  577. 
BURDEN    OF    PROOF. 

A  confession  must  first  be  shown  to  be  voluntary. — 
Jones  v.  State,  97  Neb.  151,  149  N.  W.  327;  State  v.  Mc- 
Pherson,  69  Or.  381,  141  P.  1018;  State  v.  Roselair,  57  Or. 
8,  109  P.  865;  State  v.  Garrison,  59  Or.  440,  117  P.  657. 
Arkansas.  The  burden  of  proof  is  upon  the  state  to  show 
that  a  confession  was  made  without  the  influence  of 
threats,  inducements  or  promises. — Smith  v.  State,  74 
Ark.   397,    85    S.   W.    1123. 

California.  Evidence  of  a  confession  is  never  admissible 
unless  the  prosecution  shows,  previous  to  its  reception, 
that  it  was  freely  and  voluntarily  given  and  without 
any  inducement  or  offer  of  leniency  in  punishment  or 
by  reason  of  any  intimidation  or  threat. — People  v.  Burns, 
27  Cal.  App.  227,  149  P.  605. 

Nebraska.  It  is  sufficient  for  the  state  to  show  all  that 
occurred  before  and  at  the  time  of  the  confession,  pro- 
vided it  excludes  the  hypothesis  of  hope  or  fear. — Snider 
v.  State,   56  Neb.   309,   76   N.   W.   574. 

Oklahoma.  The  burden  of  proof  is  upon  accused  to  show 
facts  which  render  his  confession  inadmissible. — Berry 
v.  State,  4  Okl.  Cr.  202,  111  P.  676. 

DEFENDANT'S  REBUTTAL.. 
California.     It    is    error   to    receive    a    confession   without 
first  hearing  defendant's  evidence  that  it  was  procured  by 
threats  or  promises. — People  v.  Gibson,  28  Cal.  App.  334, 
152  P.  316. 


CONFESSIONS   DEFINED  217 

Colorado.  Testimony  that  one  indicted  for  poisoning  a 
horse  confessed  the  fact  and  declared  that  he  procured 
the  poison  at  .a  certain  establishment  may  be  rebutted  by 
evidence  that  such  establishment  never  used  or  kept  the 
poison.— Jaynes  v.  People,  44  Colo.  535,  99  P.  325. 
Nevada.  Accused  may  rebut  testimony  that  his  confes- 
sion was  voluntary. — State  v.  Williams,  31  Nev.  360,  102 
P.  974. 

Oregon.  Accused  may  introduce  evidence  to  contradict 
any  statement  of  his  alleged  confession. — State  v.  Blod- 
gett,  50  Or.  329,  90  P.  820. 

PRELIMINARY  QUESTIONS. 
The  preliminary  question  as  to  the  admissibility  of  a 
confession  is  for  the  court. — Kermeen  v.  State,  17  Ariz. 
263,  151  P.  738;  People  v.  Loper,  159  Cal.  6,  112  P.  720; 
People  v.  Burns,  27  Cal.  App.  227,  149  P.  605;  State  v. 
Sherman,  35  Mont.  512,  90  P.  981;  State  v.  Berberick,  38 
Mont.  433,  100  P.  209;  State  v.  Williams,  31  Nev.  360, 
102  P.  974;  Berry  v.  State,  4  Okl.  Cr.  202,  111  P.  676; 
State  v.  Spanos,  66  Or.  118,  134  P.  6;  State  v.  Roselair,  57 
Or.  8,  109  P.  865;  State  v.  Blodgett,  50  Or.  329,  92  P.  820. 
Montana.  In  Montana  it  is  held  that  the  testimony  on 
the  admissibility  of  a  confession,  though  for  the  court  to 
decide,  should  be  taken  before  the  jury. — State  v.  Sher- 
man, 35  Mont.  512,  90  P.  981. 

Oregon.  As  preliminary  matter  the  court  must  determine 
from  the  testimony  relating  to  the  manner  of  the  execu- 
tion of  the  alleged  admission  whether  or  not  it  is  compe- 
tent. If  this  question  is  answered  in  the  affirmative,  the 
confession  is  then  read  to  the  jury,  who  are  the  exclusive 
judges  of  its  weight  and  value  as  evidence. — State  v. 
Roselair,  57  Or.  8,  109  P.  865. 

Washington.  Where  it  is  uncertain  whether  the  confes- 
sion was  made  under  the  influence  of  threats,  the  ques- 
tion is  for  the  jury,  the  confession  being  submitted  to 
them.— State  v.  Wilson,  68  Wash.  464,  123  P.  795. 

ISSUES   AND    PROOF. 
Arkansas.     All  of  a  confession  that  is  relevant  should  be 
admitted,   including  the   reasons   given   by  accused   for  a 
homicide   confessed. — Williams   v.    State,    69    Ark.    599,    65 
S.  W.  103. 


218   CONFESSION  CAUSED  BY  INDUCEMENT,  ETC. 

Kansas.  The  jury  may  accept  or  reject  a  confession,  or 
believe  such  parts  of  it  as  they  wish. — State  v.  Curtis,  93 
Kan.  743,  145  P.  858. 

Utah.  Accused  may  show  his  mental  condition  in  re- 
buttal after  the  admission  of  his  confession. — State  v. 
Haworth,  24  Utah  398,  68  P.  155. 

WEIGHT  AND  SUFFICIENCY. 
It  is  within  the  discretion  of  the  jury  whether  to  accept 
and  believe  a  confession. — State  v.  Curtis,  93  Kan.  743, 
145  P.  858;  State  v.  Berberick,  38  Mont.  433,  100  P.  209; 
State  v.  Blodgett,  50  Or.  329,  92  P.  820;  Herndon  v.  State, 
50  Tex.  Cr.  R.  552,  99  S.  W.  558. 

California.  While  the  rule  is  that  confessions  are  to  be 
received  with  great  caution,  yet  when  the  admission  is 
deliberately  made  and  precisely  identified  the  evidence  it 
affords  is  of  the  most  satisfactory  nature. — People  v.  Ford, 
25  Cal.  App.  388,   143  P.   1075. 

Article  22.* 

confession    caused    by    inducement,    threat,    or    promise, 

when  irrelevant  in  criminal  proceeding. 

No  confession  is  deemed  to  be  voluntary  if  it 

appears  to  the  judge  to  have  been  caused  by  any 

inducement,  threat,  or  promise,  proceeding  from 

(a)  It  is  not  easy  to  reconcile  the  cases  on  this  subject.  In 
R.  v.  Baldry,  decided  in  1852  (2  Den,  C.  C.  430),  the  con- 
stable told  the  prisoner  that  he  need  not  say  anything  to 
criminate  himself,  but  that  what  he  did  say  would  be  taken 
down  and  used  as  evidence  against  him.  It  was  held  that  this 
was  not  an  inducement,  though  there  were  earlier  cases  which 
treated  it  as  such.  In  R.  v.  Jarvis,  L.  R.  1  C.  C.  R.  96,  the 
following  was  held  not  to  be  an  inducement:  "I  think  it  is 
right  I  should  tell  you  that,  besides  being  in  the  presence  of 
my  brother  and  myself"  (prisoner's  master),  "you  are  in  the 
presence  of  two  officers  of  the  police;  and  I  should  advise 
you  that  to  any  question  that  may  be  put  to  you,  you  will 
answer  truthfully,  so  that  if  you  have  committed  a  fault  you 
may  not  add  to  it  by  stating  what  is  untrue.  Take  care.  We 
I)  now  more  than  you  think  we  know."  So,  in  R.  v.  Reeve,  L,. 
R.  1  C.  C.  R.  362,  where  the  words  were,  "You  had  better/ 
as   good   boys,    tell   the   truth,"    the   confession   was  held   ad- 


*  See  Note  at  end  of  Article. 


CONFESSION  CAUSED  BY  INDUCEMENT,  ETC.    219 

a  person  in  authority,  and  having  reference  to  the 
charge  against  the  accused  person,  whether  ad- 
dressed to  him  directly  or  brought  to  his  knowl- 
edge indirectly; 

and  if  (in  the  opinion  of  the  judge)  (a)  such 
inducement,  threat,  or  promise,  gave  the  accused 
person  reasonable  grounds  for  supposing  that  by 
making  a  confession  he  would  gain  some  advan- 
tage or  avoid  some  evil  in  reference  to  the  pro- 
ceedings against  him: 

A  confession  is  not  involuntary,  only  because  it 
appears  to  have  been  caused  by  the  exhortations 
of  a  person  in  authority  to  make  it  as  a  matter  of 
religious  duty,  or  by  an  inducement  collateral  to 
the  proceeding,  or  by  inducements  held  out  by  a 
person  not  in  authority. 

The  prosecutor,  officers  of  justice  having  the 
prisoner  in  custody,  magistrates,  and  other  per- 
sons in  similar  positions,  are  persons  in  authority. 
The  master  of  the  prisoner  is  not  as  such  a  per- 
son in  authority  if  the  crime  of  which  the  per- 
son making  the  confession  is  accused  was  not  com- 
mitted against  him. 

A  confession  is  deemed  to  be  voluntary  if  (in 
the  opinion  of  the  judge)  it  is  shown  to  have  been 
made  after  the  complete  removal  of  the  impres- 
sion produced  by  any  inducement,  threat,  or  prom- 
ise which  would  otherwise  render  It  involuntary. 

Facts  discovered  in  consequence  of  confessions 
improperly  obtained,  and  so  much  of  such  confes- 

missible.  In  R.  v.  Fennell,  7  Q.  B.  D.  147,  the  prosecutor,  In 
the  presence  of  the  police  inspector,  said  to  the  prisoner: 
"The  inspector  tells  me  you  are  making  house-breaking  im- 
plements; if  that  is  so,  you  had  better  tell  the  truth,  it  may 
be  better  for  you."  These  words  were  held  to  exclude  the 
confession  which  followed. 


220   CONFESSION  CAUSED  BY  INDUCEMENT,  ETC. 

sions  as  distinctly  relate  to  such  facts,  may  be 
proved,  (b) 

(b)    [1   Wigmore   Ev.,    §   831    et   seq.] 

Illustrations. 

(a)  The  question  is,  whether  A  murdered  B. 

A  handbill  issued  by  the  Secretary  of  State,  promising  a 
reward  and  pardon  to  any  accomplice  who  would  confess,  is 
brought  to  the  knowledge  of  A,  who,  under  the  influence  of 
the  hope  of  pardon,  makes  a  confession.  This  confession  is 
not  voluntary. — 1 

(b)  A  being  charged  with  the  murder  of  B,  the  chaplain 
of  the  gaol  reads  the  Commination  Service  to  A,  and  exhorts 
him  upon  religious  grounds  to  confess  his  sins.  A,  in  conse- 
quence, makes  a  confession.     This  confession  is  voluntary. — 2 

(c)  The  gaoler  promises  to  allow  A,  who  is  accused  of  a 
crime,  to  see  his  wife,  if  he  will  tell  where  the  property  is. 
A  does  so.     This  is  a  voluntary  confession. — 3 

(d)  A  is  accused  of  child  murder.  Her  mistress  holds  out 
an  inducement  to  her  to  confess,  and  she  makes  a  confession. 
This  is  a  voluntary  confession,  because  the  mistress  is  not 
a   person   in   authority. — 4 

(e)  A  is  accused  of  the  murder  of  B.  C,  a  magistrate,  tries 
to  induce  A  to  confess  by  promising  to  try  to  get  him  a  par- 
don if  he  does  so.  The  Secretary  of  State  informs  C  that  no 
pardon  can  be  granted,  and  this  is  communicated  to  A.  After 
that  A  makes  a  statement.     This  is  a  voluntary  confession. — 5 

(f)  A,  accused  of  burglary,  makes  a  confession  to  a  police- 
man under  an  inducement  which  prevents  it  from  being  vol- 
untary. Part  of  it  is  that  A  had  thrown  a  lantern  into  a 
certain  pond.  The  fact  that  he  said  so,  and  that  the  lantern 
was   found   in   the   pond   in   consequence,    may   be    proved. — 6 

1  R.   v.   Boswell,   C.   &  Marsh.    584. 

2  R.  v.  Gilham,  1  Moo.  C.  C.  186.  In  this  case  the  exhorta- 
tion was  that  the  accused  man  should  confess  "to  God,"  but 
it  seems  from  parts  of  the  case  that  he  was  urged  also  to 
confess  to  man  "to  repair  any  injury  done  to  the  laws  of  his 
country."  According  to  the  pracf  ce  at  that  time,  no  reasons 
are  given  for  the  judgment.  Tito  princ  pie  seems  to  be  that 
a  man  is  not  likely  to  tell  a  falsehood  in  -uch  cases,  from  re-| 
ligious  motives.  The  case  is  sometimes  cited  as  an  authority 
for  the  proposition  that  a  clergyman  may  be  compelled  to 
reveal  confessions  made  to  him  professionally.  It  has  noth- 
ing to   do   with   the   subject. 

3  R.  v.  Lloyd,  6  C.  &  P.   393. 

4  R.  v.   Moore,   2  Den.  C.  C.   522. 

5  R.  v.  Clewes,  4  C.  &  P.  221.     [1  Wigmore  Ev.,   §  826.] 

6  R.  v.  Gould,  9  C.  &  P.  364.  This  is  not  consistent,  so  far 
as  the  proof  of  the  words  goes,  with  R.  v.  Warwickshall,  1 
Leach,   263. 


CONFESSION  CAUSED  BY  INDUCEMENT,  ETC.    221 

VOLUNTARY  CHARACTER. 
In  General. 

A  confession  cannot  be  used  against  defendant  unless 
the  prosecution  can  show  its  voluntary  character,  and 
that  neither  duress  nor  intimidation,  hope  nor  inducement 
caused  defendant  to  furnish  such  evidence  against  him- 
self.—People  v.  Borello,  161  Cal.  367,  119  P.  500;  State  v. 
Spanos,  66  Or.  118,  134  P.  6;  State  v.  Miller,  61  Wash. 
125,   111  P.   1053. 

It  is  necessary  that  a  confession  be  voluntarily  given. — 
State  v.  Ascarate,  21  N.  M.  191,  153  P.  1036;  State  v.  Wil- 
son,  (Nev.),  156  P.  929. 

In  order  to  render  a  confession  inadmissible,  there  must 
be  some  threat  or  inducement  held  out  to  overcome  the 
will  of  accused. — Kermeen  v.  State,  17  Ariz.  263,  151  P. 
738;  Dewein  v.  State,  114  Ark.  472,  170  S.  W.  582. 
California.  Words  uttered  by  accused  in  his  sleep  are 
Inadmissible. — People  v.  Robinson,  19  Cal.  41. 

A  confession  is  admissible  if  not  induced  by  the  hope 
held  out  by  the  prior  promises  or  inducements. — People 
v.  Jim  Ti,  32  Cal.  60. 

New  Mexico.  A  confession  made  before  the  offer  of  im- 
proper inducements  is  not  inadmissible  thereby. — State  v. 
Orfanakis,   (N.  M.),  159  P.  674. 

Texas.  The  mere  fact  that  defendant  believed  that  one 
of  the  crowd  who  approached  him  was  an  officer  did  not 
constitute  an  arrest,  so  as  to  render  a  confession  inad- 
missible.—Lopez  v.  State,  37  Tex.  Cr.  R.  649,  40  S.  W.  972. 

Statements  in  letters  amounting  to  a  confession,  written 
while  accused  was  not  under  arrest,  are  admissible. — 
Edens  v.  State,  (Tex.  Cr.  R.),  43  S.  W.  89. 

Proper  Inducements. 
Idaho.     The  promise  of  a  detective  to  go  on  defendant's 
bond  is  not  a  sufficient  inducement  to  exclude  a  confes- 
sion  made   thereafter. — Territory  v.    McKern,   2   Ida.   759, 
26  P.  123. 

Kansas.  Sheriff  told  defendant  that  he  believed  defend- 
ant knew  who  committed  the  crime  and  that  he  better  tell 
all  he  knew  about  it;  that  if  he  was  guilty  it  would  be 
better  for  him  to  admit  the  truth;  and  that  if  he  was 
innocent  he  should  stick  to  it  regardless  of  the  suspicion 
against  him  and  that  he   (the  sheriff)  would  protect  him. 


222   CONFESSION  CAUSED  BY  INDUCEMENT,  ETC. 

Confession  made  thereafter  admitted. — State  v.  Kornstett, 
62  Kan.  221,  61  P.  805. 

South  Dakota.  "The  best  thing  for  you  to  do  is  to  tell 
the  truth,  and  you  might  get  out  of  it  today,"  made  by 
the  sheriff,  was  not  an  improper  inducement,  so  as  to  ex- 
clude a  subsequent  confession. — State  v.  Allison,  24  S.  D. 
622,  124  N.  W.  747. 

Texas.  "The  best  thing  you  can  do  is  to  tell  the  truth,  and 
the  whole  truth  about  it,"  said  by  a  justice  of  the  peace 
before  whom  defendant  was  taken,  does  not  render  a 
confession  inadmissible,  though  defendant  was  under  ar- 
rest at  the  time. — Grimsiger  v.   State,   44  Tex.   Cr.   R.   1, 

69  S.  W.  583. 

Before   Officers. 
Voluntary  confessions  are  admissible,  though  made  in 
the  presence  of  officers  and  in  answer  to  questions: 
Arkansas:     Dewein  v.  State,  114  Ark.  472,  170  S.  W.  582. 
California:     People  v.   Heivner,  13  Cal.  App.   677,   114  P. 
411    (sheriff's    admonition   to   tell   the   truth) ;    People   v. 
Isenberg,  25  Cal.  App.  334,  143  P.  791;   People  v.  Wilkin- 
son, (Cal.  App.),  158  P.  1067   ("tell  the  truth"). 
Colorado:     Reagan    v.    People,    49    Colo.    316,    112    P.    785 
(officer  telling  accused  to  tell  the  straight  facts  and  keep 
nothing  back). 

Oregon:  State  v.  Humphrey,  63  Or.  540,  128  P.  824 
("Now,    George,    tell    the    truth") ;    State    v.    McPherson, 

70  Or.   371,  141  P.   1018. 

Texas:     Oliver  v.  State,   (Tex.  Cr.  R.),  159  S.  W.  235. 

"Voluntary  statements  by  accused  while  under  arrest, 
but  without  duress  or  inducement,  are  admissible. — Peo- 
ple v.  Isenberg,  25  Cal.  App.  334,  143  P.  791;  Tyner  v. 
United  States,  2  Okl.  Cr.  689,  103  P.  1057. 
Arkansas.  The  fact  that  accused  was  a  prisoner  and  made 
a  confession  to  the  officer  who  had  him  in  custody  does  not 
thereby  render  it  inadmissible. — Shefflin.  v.  State,  (Ark.), 
184  S.  W.  454. 

California.  If  a  confession  was  voluntary,  the  fact  that 
defendant  was  under  arrest  and  in  custody  of  officers  does 
not  render  it  inadmissible. — People  v.  Hoge,  25  Cal.  App. 
456,  143  P.  1072. 


CONFESSION  CAUSED  BY  INDUCEMENT,  ETC.    223 

A  voluntary  confession  to  the  sheriff  admissible. — Peo- 
ple v.  Andrade,  29  Cal.  App.  1,  154  P.  283. 
Kansas.  A  confession  is  admissible  although  made  when 
the  accused  is  in  custody,  where  it  is  not  induced  by 
threats,  promises  or  intimidation. — State  v.  Reddick,  7 
Kan.  143. 

Nevada.  The  fact  the  accused  was  imbued  with  fear  oc- 
casioned by  his  arrest  and  a  knowledge  of  guilt  would 
not  alone  make  his  confessions  inadmissible. — State  v. 
Johnny,  29  Nev.  203,  87  P.  3. 

Texas.  Declarations  by  accused  to  officers  before  any 
thing  had  been  said  that  would  indicate  or  cause  him  to 
sui-pect  that  he  was  likely  to  be  arrested,  are  admissible. 
—Cooper  v.  State,  (Tex.  Cr.  R.),  147  S.  W.  273;  Snider 
v.  State,  70  Tex.  Cr.  R.  241,  155  S.  W.  533. 

Persons  in  Authority. 
Arkansas.  The  owner  of  stolen  property  is  really  the 
prosecutor  in  the  case,  and  as  such  is  a  person  in  author- 
ity, within  the  rule  excluding  confessions  when  made 
under  inducements  offered  by  persons  in  authority. — 
Sullivan  v.  State,  66  Ark.  506,  51  S.  W.  828. 
Texas.  In  order  to  render  a  confession  admissible,  the 
promise  or  inducement  must  have  been  made  or  sanc- 
tioned by  one  in  authority. — Rice  v.  State,  22  Tex.  Cr. 
R.   654,   31   S.   W.   791. 

INVOLUNTARY  CHARACTER. 

Promises  or  Inducements. 
A  confession  is  inadmissible,  unless  it  is  free  from  hope 
induced  by  promises  or  other  inducements: 
California:  People  v.  Smith.  15  Cal.  409  (promise  to 
help  him  get  clear,  if  he  would  disclose  his  confederate); 
People  v.  Thompson,  84  Cal.  598,  24  P.  384  ("It  will  be 
better  for  you  to  confess  or  tell  all  about  it") ;  People  v. 
Siemsen,  153  Cal.  387,  95  P.  863. 

Colorado:  Reagan  v.  People,  49  Colo.  316,  112  P.  785. 
Montana:  Territory  v.  Underwood,  8  Mont.  131,  19  P. 
398  (that  the  prosecuting  witness  would  probably  with- 
draw the  prosecution);  State  v.  Sherman,  35  Mont.  512, 
90  P.  981  (inducement  by  one  to  whom  the  confession  is 
made,  given  in  the  presence  of  an  officer). 
Nevada:     State  v.  Dye,  36  Nev.  143,  133  P.  935  (statements 


224   CONFESSION  CAUSED  BY  INDUCEMENT,  ETC. 

leading  accused  to  hope  that  he  would  have  benefit  if  he 
disclosed  the  instigators  of  the  crime). 
New  Mexico:  State  v.  Armijo,  18  N.  M.  262,  133  P.  555. 
Texas:  Fowler  v.  State,  71  Tex.  Cr.  R.  1,  158  S.  W.  1117. 
Arkansas.  A  confession  made  under  the  promise  of 
prosecuting  witness,  the  owner  of  the  property  stolen  or 
burned,  that  defendant  would  not  be  exposed,  troubled  or 
prosecuted,  by  him  if  he  confessed,  is  inadmissible. — 
Sullivan  v.  State,  66  Ark.  506,  51  S.  W.  828;  White  v. 
State,  70  Ark.  24,  65  S.  W.  937. 

California.  A  confession  by  a  defendant  18  years  old,  in- 
duced by  the  statement  of  the  sheriff  with  whom  the  boy 
had  sought  an  interview  for  the  purpose  of  seeing  if  he 
could  get  off  by  confessing,  that  "It  would  be  better  for 
you  to  come  out  and  tell  all  you  know  about  it,"  is  inad- 
missible.—People  v.  Thompson,  84  Cal.  598,  24  P.  384. 

Where  accused  was  told  that  they  had  a  sure  case 
against  him,  and  that  if  he  would  confess  he  (the  sheriff) 
would  use  his  influence  for  him,  the  confession  is  inadmis- 
sible.—People  v.  Castro,  125  Cal.  521,  58  P.  133. 
Colorado.  Confessions  of  guilt  by  promises  of  favor  are 
not  admissible. — Beery  v.  United  States,  2  Colo.  186. 
Texas.  Defendant's  bad  faith  in  refusing  to  testify 
against  other  parties  accused  of  the  same  theft,  does  not 
per  se  render  a  confession  made  by  him  on  promise  of 
immunity  if  he  would  so  testify  admissible  upon  his  sub- 
sequent trial.— Neeley  v.  State,  27  Tex.  App.  324,  11  S.  W. 
376. 

Threats. 

Threats  to  hang  accused  render  a  confession  inadmis- 
sible.— Territory  v.  McClin,  1  Mont.  396;  Warren  v.  State, 
29  Tex.  369;  Barnes  v.  State,  36  Tex.  356. 
California.     The   use   of  threats   renders   a   confession  in- 
admissible.—People  v.  Loper,  161  Cal.  367,  119  P.  500. 

Repeated  questions  by  police  officers,  though  not  accom- 
panied by  threats  or  inducements,  invalidate  a  confession, 
where  it  appears  that  accused  was  unwilling  to  confess. 
—People  v.  Quan  Gim  Gow,  23  Cal.  App.  507,  138  P.  918. 
Idaho.  That  it  was  no  use  to  deny,  is  not  a  threat. — 
Territory  v.  McKern,  2  Ida.  759,  26  P.  123. 
Kansas.     Though    a    crowd     of    persons     surrounded    the 


CONFESSION  CAUSED  BY  INDUCEMENT,  ETC.    225 

building  in  which  the  prisoner  was  confined,  his  confes- 
sion is  admissible,  where  no  threats  or  promises  were 
made. — State  v.  Ingram,  16  Kan.  14. 

Inquisitorial    and    "Third    Degree"    Methods. 

A  confession  not  voluntary,  and  obtained  by  inquisitorial 
and  "third  degree"  methods  is  inadmissible: 
Arkansas:     Edmonson  v.  State,  72  Ark.  585,  82  S.  W.  203 
(hanging  defendants  and  threatening  their  lives). 
California:     People  v.  Loper,  159  Cal.  6,  112  P.  720;   Peo- 
ple v.  Borello,  161  Cal.  367,  119  P.  500. 

Washington:  State  v.  McCullum,  18  Wash.  394,  51  P. 
1044  (confinement  in  a  dark  cell) ;  State  v.  Miller,  61 
Wash.   125,   111  P.   1053. 

Subsequent  Influence  of  Threats. 

Where  a  confession  is  inadmissible  as  being  made  un- 
der threats,  a  second  and  apparently  voluntary  confession 
made  a  few  days  thereafter  is  also  inadmissible,  where  it 
is  not  shown  that  the  effect  of  the  threats  has  been 
removed : 

California:     People  v.  Loper,  159  Cal.  6,  112  P.  720  (a  few 
days  after  threats  were  made). 
Oregon:     State  v.  Wintzingerode,  9  Or.  153. 
Washington:     State  v.  Miller,   68  Wash.   239,  122  P.   1066 
(three  or  four  days  after  duress). 

Arkansas.  A  confession  is  inadmissible  if  the  defendant 
was  still  laboring  under  the  influence  of  threats  or  in- 
ducements.—Williams  v.  State,  69  Ark.  599,  65  S.  W.  103. 
California.  Repetitions  of  a  confession  made  to  other 
officers  after  an  improper  inducement  by  a  sheriff,  though 
with  no  inducement  by  them,  are  inadmissible. — People  v. 
Castro,  125  Cal.  521,  58  P.  133. 

Colorado.  A  reiteration  of  a  confession  at  a  subsequent 
time  is  inadmissible,  if  the  influence  of  the  improper  in- 
ducement remains. — Beery  v.  United  States,  2  Colo.  186. 
Nebraska.  Where  the  confession  offered  in  evidence  was 
made  at  a  sufficient  time  after  the  involuntary  confession 
to  raise  a  presumption  that  it  was  in  no  way  influenced 
by  the  involuntary  confession,  then  it  is  admissible. — 
State  v.  Force,  69  Neb.  162,  95  N.  W.  12. 
Texas.  A  confession  is  inadmissible  if  the  defendant  was 
still  laboring  under  the  influence  of  threats  that  induced 


226   CONFESSION  CAUSED  BY  INDUCEMENT,  ETC. 

a  former  confession. — Johnson  v.  State,  48  Tex.  Cr.  R.  423, 
88  S.  W.  223. 
DISCOVERY  OF  EVIDENCE  THROUGH  CONFESSION. 

Though  a  confession  is  inadmissible  by  reason  of  in- 
ducements or  otherwise,  yet  statements  made  at  the  time 
leading  to  the  discovery  of  stolen  goods  or  other  evidences 
of  crime  are  admissible: 

Colorado:     Beery  v.   United   States,   2   Colo.    187    (produc- 
tion and  identification  of  stolen  gold  dust). 
Nevada:     State  v.   Simas,  25  Nev.  432,  62   P.  242    (where 
stolen  articles  were  concealed). 

Texas:  Fielder  v.  State,  40  Tex.  Cr.  R.  184,  49  S.  W.  376 
(where  stolen  saddle  could  be  found) ;  Winfield  v.  State, 
(Tex.  Cr.  R.),  54  S.  W.  584  (recovery  of  stolen  watch); 
Johnson  v.  State,  44  Tex.  Cr.  R.  332,  71  S.  W.  25  (articles 
of  clothing  worn  by  deceased  and  pistol  with  which  he 
was  shot,  found  at  place  named  in  confession) ;  Ortiz  v. 
State,  (Tex.  Cr.  R.),  151  S.  W.  1056  (leading  officers  to 
body  of  one  murdered);  Lane  v.  State,  (Tex.  Cr.  R.),  152 
S.  W.  897  (stolen  handbag  containing  money);  Windham 
v.  State,  (Tex.  Cr.  R.  ),  150  S.  W.  613  (discovery  of  por- 
tion of  stolen  goods). 

Arkansas.  Where  cattle  were  found  in  pursuance  of  a 
confession,  that  part  of  such  confession  stating  where  the 
stolen  cattle  could  be  found  is  admissible,  but  not  that 
portion  where  accused  said  he  stole  them. — Shufflin  v. 
State,    (Ark.),  184  S.  W.  454. 

California.  That  accused  promised  to  point  out  the  place 
where  the  stolen  money  was  buried  and  afterwards  pointed 
out  a  place  where  it  was  found,  may  be  shown,  although 
not  voluntarily  made,  but  the  prisoner's  further  statement, 
"I  buried  the  money  there,"  is  inadmissible. — People  v. 
Hoy  Yen,  34  Cal.  176. 

Kansas.  The  fact,  elicited  from  accused  under  promise 
that  he  will  not  be  prosecuted,  that  the  stolen  property 
was  found  in  accordance  with  his  statements,  cannot  be 
shown  as  a  confession,  but  may  be  admitted  as  an  admis- 
sion of  a  fact  tending  to  show  that  the  defendant  had 
some  connection  with  the  offense  charged  against  him. — 
State  v.  Mortimer,  20  Kan.  93. 

Texas.  A  confession  is  not  to  be  excluded  because  it  was 
made  to  a  sheriff  who  claimed  to  be  a  friend  and  would 


CONFESSION  CAUSED  BY  INDUCEMENT,  ETC.    227 

render  any  assistance  he  could,  where  as  a  consequence 
thereof  bones  and  watch  of  deceased  were  found  at  the 
place  pointed  out. — Wilganowski  v.  State,  (Tex.  Cr.  R.), 
180  S.  W.  692. 

BURDEN  OF  PROOF. 
California.  When  a  confession  is  offered  in  evidence  it 
is  incumbent  on  the  prosecution  to  lay  the  foundation 
by  preliminary  proof  showing  prima  facie  that  it  was 
freely  and  voluntarily  made. — People  v.  Soto,  49  Cal.  67. 
Oklahoma.  In  the  absence  of  a  statute,  prima  facie  any 
confession  is  admissible  in  evidence,  and  where  its  admis- 
sibility is  challenged  by  the  defendant  the  burden  is  on 
him  to  show  that  it  was  procured  by  such  means  or  under 
such  circumstances  as  to  show  that  it  was  procured  under 
compulsion  or  under  circumstances  of  hope  or  fear  as  to 
create  a  fair  probability  of  its  untrustworthiness,  unless 
there  is  something  in  it  or  other  evidence  on  the  part  of 
the  state  which  shows  its  admissibility. — Berry  v.  State, 
14  Okl.  202,  111  P.  678. 

PRELIMINARY  QUESTIONS. 
California.  When  a  confession  is  offered  against  a  defend- 
ant and  he  objects  to  it,  and  offers  to  prove  that  it  was  ob- 
tained by  threats  or  promises,  or  under  such  circumstances 
as  would  render  it  incompetent,  it  is  error  to  receive  the 
confession  without  first  hearing  the  proof  offered  and  rul- 
ing upon  the  competency  of  the  confession  as  evidence 
against  the  party  making  it. — People  v.  Gibson,  28  Cal. 
App.  334,  152  P.  316. 

Colorado.  The  question  as  to  whether  or  not  a  confession 
was  voluntary  so  as  to  qualify  it  for  admission  is  entirely 
within  the  province  of  the  court  to  determine. — Fincher 
v.  People,  26  Colo.  169,  56  P.  902. 

Oklahoma.  Where  the  competency  of  confessions  is  ob- 
jected to  on  the  ground  that  they  were  not  voluntary,  or 
were  made  under  duress  or  promises  of  leniency,  the  court 
should  withdraw  the  jury,  and  hear  all  the  facts  and  cir- 
cumstances attending  such  alleged  confession,  and  deter- 
mine its  competency,  in  the  absence  of  the  jury. — Kirk  v. 
Terr.,  10  Okl.  46,  60  P.  797. 

South  Dakota.  "At  the  request  of  plaintiff  in  error  the 
question  as  to  whether  or  not  these  confessions  were  vol- 


228         CONFESSIONS  MADE  UPON  OATH,  ETC. 

untary  was  by  the  court  submitted  to  the  jury,  and  the 
proof  in  regard  to  the  same  was  heard  and  passed  upon 
by  them.  This  practice  seems  to  be  sustained  by  the 
courts."— State  v.  Vincent,  16  S.  D.  62,  91  N.  W.  347. 
Texas.  Whether  a  confession  is  voluntary  is  for  the  de- 
termination of  the  court. — Cain  v.  State,  18  Tex.  390. 

After  the  court  admits  a  confession  as  being  voluntary, 
it  is  competent  for  the  defendant  to  introduce  before  the 
jury  all  the  testimony  tending  to  show  that  the  confession 
was  not  freely  and  voluntarily  made,  in  order  to  determine 
the  degree  of  credit  they  will  attach  to  the  confession. — 
Hamlin  v.  State,  39  Tex.  Cr.  R.  579,  47  S.  W.  656. 

NOTE   XV. 
(To   Article   22.) 

On  the  law  as  to  Confessions,  see  [1  Wigmore  Ev„  §  815 
et  seq.]  1  Ph.  Ev.  401-423;  T.  B.  ss.  796-807,  and  s.  824;  Best, 
ss.  551-574;  Roscoe,  Cr.  Ev.  38-56;  3  Russ.  on  Crimes,  by 
Greaves,  365-436.  Joy  on  Confessions  reduces  the  law  on  the 
subject  to  the  shape  of  13  propositions,  the  effect  of  all  of 
which  is  given  in  the  text  in  a  different  form. 

Many  cases  have  been  decided  as  to  the  language  which 
amounts  to  an  inducement  to  confess  (see  Roscoe,  Cr.  Ev. 
40-43,  where  most  of  them  are  collected).  They  are,  how- 
ever, for  practical  purposes,  summed  up  in  R.  v.  Baldry,  2 
Den.  430,  which  is  the  authority  for  the  last  lines  of  the  first 
paragraph  of  this  article. 

Article  23.* 
confessions  made  upon  oath,  etc. 

Evidence  amounting  to  a  confession  may  be 
used  as  such  against  the  person  who  gives  it,  al- 
though it  was  given  upon  oath,  and  although  the 
proceeding  in  which  it  was  given  had  reference  to 
the  same  subject  matter  as  the  proceeding  in 
which  it  is  to  be  proved,  and  although  the  witness 
might  have  refused  to  answer  the  questions  put 
to  him ;  but  if,  after  refusing  to  answer  any  such 
question,  the  witness  is  improperly  compelled  to 


*  See  Note  at  end  of  Article. 


CONFESSIONS  MADE  UPON  OATH,  ETC.         229 

answer  it,  his  answer  is  not  a  voluntary  confes- 
sion, (a) 

a  R.  v.  Garbett,  1  Den.  236.      [1  Wigmore  Ev.(  §  849  et  seq.] 

Illustrations. 

(a)  The  answers  given  by  a  bankrupt  in  his  examination 
may  be  used  against  him  in  a  prosecution  for  offenses  against 
the    law    of    bankruptcy. — 1 

(b)  A  is  charged  with  maliciously  wounding  B. 

Before  the  magistrates  A  appeared  as  a  witness  for  C, 
who  was  charged  with  the  same  offense.  A's  deposition  may 
be   used   against  him   on  his   own   trial. — 2 

ON    PRELIMINARY    EXAMINATION,    OR    FORMER    OR 

ANOTHER  TRIAL. 
California.     A  confession  voluntarily  made  under  oath  at 
a  preliminary  examination  is  inadmissible,  where  the  pro- 
cedure at  such  examination  is  prescribed  by  law,  and  no 
oath  is  allowed. — People  v.  Gibbons,  43  Cal.  557. 

Statements  of  defendant  voluntarily  made  under  oath 
on  his  preliminary  examination  before  a  magistrate  who 
informed  him  of  his  rights,  are  admissible. — People  v. 
Kelley,  47  Cal.  125. 

Testimony  of  defendant  given  at  the  trial  of  another 
for  the  same  offense  is  admissible  against  him  where  he 
had  not  objected  to  being  sworn,  nor  to  answering  the 
questions.— People  v.  Mitchell,  94  Cal.  550,  29  P.  1106. 
Kansas.  Testimony  given  by  defendant  on  preliminary 
examination,  reduced  to  writing  and  signed  by  him,  is  ad- 
missible.—State  v.  Miller,  35  Kan.  328. 
Oregon.  By  statute,  a  confession  made  on  preliminary 
examination,  not  signed  or  certified,  is  inadmissible. — 
State  v.  Hatcher,  29  Or.  309,  44  P.  584. 
Texas.  Testimony  taken  before  an  examining  court  and 
reduced  to  writing  by  the  justice,  but  not  signed  by  the 
witness,  when  in  effect  a  confession,  may  be  proven 
against  the  witness  by  parol  evidence. — Alston  v.  State, 
41  Tex.  39. 

A  voluntary  statement  by  accused  after  being  warned, 
signed  and  sworn  to  before  a  magistrate  on  examination, 
is    admissible,    though    defendant    should    not    have    been 

1  R.  v.  Scott,  1  D.  &  B.  47;  R.  v.  Robinson.  I,.  R.  1  C.  C. 
R.  80;  R.  v.  Widdop,  L.  R.  2  C.  C.  5.      [1  Wigmore  Ev.,  $  849.] 

2  R.  v.  Chidley  &  Cummins,  8  C.  C.  C.  365. 


230         CONFESSIONS  MADE  UPON  OATH,   ETC. 

sworn.— Salas  v.  State,  31  Tex.  Cr.  R.  415,  21  S.  W.  44. 
Washington.     The  voluntary  testimony  of  defendant  given 
at  a  preliminary  examination  is  admissible.— State  v.  Lyts, 
25  Wash.  347,  65  P.  530. 

BEFORE  CORONER  OR  GRAND  JURY. 

Testimony  of  accused  at  a  coroner's  inquest  is  admis- 
sible.—People  v.  Martinez,  66  Cal.  278,  5  P.  261;  State  v. 
Taylor,  36  Kan.  329,  13  P.  550.  But  not  where  he  testified 
under  the  belief  that  he  had  to  answer  the  questions  put 
to  him.— State  v.  O'Brien,  18  Mont.  1,  43  P.  1091. 
California.  A  written  confession  made  and  signed  by  de- 
fendant before  a  coroner's  clerk,  without  threats  or  prom- 
ises, is  admissible. — People  v.  Martinez,  66  Cal.  278,  5  P.  261. 
Kansas.  Voluntary  testimony  given  by  defendant  at  a 
coroner's  inquest,  reduced  to  writing  and  signed  by  him 
is  admissible. — State  v.  Taylor,  36  Kan.  329. 

Testimony  of  defendant  voluntarily  given  before  a  cor- 
oner's inquest  is  admissible,  though  defendant  did  not 
testify  at  the  trial. — State  v.  Taylor,  36  Kan.  329. 
Nebraska.  Where  a  confession  was  voluntarily  made  be- 
fore a  coroner's  jury,  with  no  threats  by  persons  present, 
only  his  father  telling  him  he  would  be  acquitted  if  he 
told  the  whole  story,  it  is  admissible. — State  v.  Force,  69 
Neb.  162,  95  N.  W.  42. 

Texas.  Defendant's  testimony  before  a  coroner's  inquest 
is  inadmissible  if  he  is  aware  he  is  suspected  of  the 
crime.— Wood  v.  State,  22  Tex.  App.  431,  3  S.  W.  336. 

The  admissions  or  confessions  of  an  accused,  made  be- 
fore a  grand  jury,  after  being  warned,  are  admissible. — 
Wisdom  v.  State,  42  Tex.  Cr.  R.  579,  61  S.  W.  926;  Giles  v. 
State,  43  Tex.  Cr.  R.  561,  67  S.  W.  411. 

NOTE   XVI. 
(To    Article    23.) 

Cases  are  sometimes  cited  to  show  that  if  a  person  is  exam- 
ined as  a  witness  on  oath,  his  deposition  cannot  be  used  in 
evidence  against  him  afterwards  (see  T.  E.  ss.  809  and  818, 
n.  6;  also  3  Russ.  on  Cri.,  by  Greaves,  407,  &c. ).  All  these 
cases,  however,  relate  to  the  examinations  before  magistrates 
of  persons  accused  of  crimes,  under  the  statutes  which  were 
in   force  before   11   &  12   Vict.,   c.   42. 

These  statutes  authorized  the  examination  of  prisoners, 
but   not   their   examination   upon  oath.      The   11   &  12   Vict.,   c. 


CONFESSIONS  MADE  UNDER  A  PROMISE         231 

42,  prescribes  the  form  of  the  only  question  which  the  mag- 
istrate can  put  to  a  prisoner;  and  since  that  enactment  it  is 
scarcely  possible  to  suppose  that  any  magistrate  would  put 
a  prisoner  upon  his  oath.  The  cases  may  therefore  be  re- 
garded as  obsolete. 

Article  24. 
confession  made  undee  a  promise  of  secrecy. 

If  a  confession  is  otherwise  relevant,  it  does 
not  become  irrelevant,  merely  because  it  was  made 
under  a  promise  of  secrecy,  (a)  or  in  consequence 
of  a  deception  practised  on  the  accused  person  for 
the  purpose  of  obtaining  it,  (b)  or  when  he  was 
drunk,  (c)  or  because  it  was  made  in  answer  to 
questions  which  he  need  not  have  answered,  what- 
ever may  have  been  the  form  of  those  questions, 
or  because  he  was  not  warned  that  he  was  not 
bound  to  make  such  confession,  and  that  evidence 
of  it  might  be  given  against  him.  (d) 

PROMISE  OF  SECRECY. 
Texas.     A  confession  made  to  one  not  an  officer,  nor  hav- 
ing defendant  under  arrest,  induced  by  promises  that  he 
would  not  tell,  is  admissible. — Lawson  v.  State,   (Tex.  Cr. 
R.),   50   S.  W.   345. 

EFFECT  OF  DECEPTION,  OR  UTTERANCES  IN 
INTOXICATION  OR  SLEEP. 
The  fact  of  intoxication  does  not  render  a  confession  in- 
admissible (Lienpo  v.  State.  28  Tex.  Cr.  179,  12  S.  W. 
588),  though  furnished  him  with  the  consent  of  the  officer 
having  him  in  charge  (People  v.  Ramirez,  56  Cal.  533) ; 
but  where  the  confession  was  obtained  by  the  sheriff  fur- 

8    fl    Wigmore   Ev.,    §    841.] 

b    [1   Wigmore  Ev.,    §   841.] 

c    [1    Wigmore    Ev.,    §    841.] 

■I  Cases  collected  and  referred  t<>  In  i  l'h.  Ev.  420,  and  T. 
E.  s.  804.  See,  too,  Joy,  sections  111.,  iv.,  v.  [1  Wigmore  Ev  . 
§    851.] 


232        CONFESSIONS  MADE  UNDER  A  PROMISE 

nishing  accused  with  intoxicating  liquors,  and  then  plying 
him  with  questions,  it  is  inadmissible. — McNutt  v.  State, 
68  Neb.  207,  94  N.  W.  243. 

California.  In  a  criminal  case  words  uttered  by  defend- 
ant while  sleeping  are  not  admissible  against  him. — Peo- 
ple v.  Robinson,  19  Cal.  41. 

Nebraska.  Confession  of  a  suspected  party  induced  by 
deceit  of  a  detective  in  the  guise  of  a  friend  is  admissible. 
— Heldt  v.  State,  20  Neb.  492,  30  N.  W.  626. 
Texas.  The  fact  that  defendant  was  intoxicated  at  the 
time  of  a  confession  affects  its  weight,  but  not  its  admis- 
sibility.—White  v.  State,  32  Tex.  Cr.  R.  623,  25  S.  W.  784. 

A  confession  secured  by  a  detective  through  gaining  the 
confidence  of  accused  by  boasting  of  his  own  prowess  as 
a  criminal  and  murderer,  is  admissible. — Spencer  v.  State, 
48  Tex.  Cr.  R.  580,  90  S.  W.  638. 

CAUTION   OR   WARNING. 

In  the  absence  of  statute,  a  confession  made  by  one  in 
custody,  not  induced  by  threats,  promises  or  inducements 
held  out,  is  admissible,  though  defendant  is  not  warned. — 
Greenwood  v.  State,  107  Ark.  568,  156  S.  W.  427;  Dewein 
v.  State,  114  Ark.  472,  170  S.  W.  582;  State  v.  Mircovich, 
35  Nev.  485,  130  P.  765. 

Colorado.  A  caution  is  not  necessary. — Reagan  v.  Peo- 
ple, 49  Colo.  316,  112  P.  785. 

Montana.  Sufficient  caution  and  warning,  on  the  facts. — 
State  v.  Berberick,  38  Mont.  423,  100  P.  209. 
Oklahoma.  Where  a  confession  was  voluntary,  it  is  im- 
material that  accused  was  in  jail  under  arrest  and  had 
not  been  warned. — Anderson  v.  State,  8  Okl.  Cr.  App.  90, 
126  P.  840. 

Texas.  By  statute,  a  warning  must  be  given  when  accused 
is  in  custody.— Henry  v.  State,  38  Tex.  Cr.  R.  306,  42  S. 
W.  559;  Robertson  v.  State,  54  Tex.  Cr.  R.  21,  111  S.  W. 
741;  Gaston  v.  State,  55  Tex.  Cr.  R.  270,  116  S.  W.  582; 
Burton  v.  State,  62  Tex.  Cr.  R.  402,  137  S.  W.  1145;  Over- 
street  v.  State,  (Tex.  Cr.  R.),  150  S.  W.  899;  Brown  v. 
State,  71  Tex.  Cr.  R.  45,  158  S.  W.  533;  Fowler  v.  State, 
71  Tex.  Cr.  R.  1,  158  S.  W.  1117;  Chism  v.  State,  71  Tex. 
Cr.  R.  389,  159  S.  W.  1185;  Hill  v.  State,  72  Tex.  Cr.  R. 
109,  161  S.  W.  118. 


STATEMENTS   BY  DECEASED  PERSONS  233 

Article  25. 

statements  by  deceased  persons  when  deemed  to  be 
relevant. 

Statements,  written  or  verbal,  of  facts  in  issue 
or  relevant,  or  deemed  to  be  relevant  to  the  issue 
are  deemed  to  be  relevant,  if  the  person  who  made 
the  statement  is  dead,  in  the  cases,  and  on  the 
conditions,  specified  in  Articles  26-31,  both  inclu- 
sive. In  each  of  those  articles  the  word  "declara- 
tion" means  such  a  statement  as  is  herein  men- 
tioned, and  the  word  "declarant"  means  a  dead 
person  by  whom  such  a  statement  was  made  in 
his  lifetime,  (a) 

Article  26*. 
dying  declaration  as  to  cause  of  death. 

A  declaration  made  by  the  declarant  as  to  the 
cause  of  his  death,  or  as  to  any  of  the  circum- 
stances of  the  transaction  which  resulted  in  his 
death,  is  deemed  to  be  relevant 

only  in  trials  for  the  murder  or  manslaughter 
of  the  declarant; 

and  only  when  the  declarant  is  shown,  to  the 
satisfaction  of  the  judge,  to  have  been  in  actual 
danger  of  death,  and  to  have  given  up  all  hope 
of  recovery  at  the  time  when  his  declaration  was 
made. 

Such  a  declaration  is  not  irrelevant  merely  be- 
cause it  was  intended  to  be  made  as  a  deposition 
before  a  magistrate,  but  is  irregular. 

a.  [Dying  declarations  are  an  exception  to  the  hearsay  rule. 
See  2  Wigmore  Ev„   §    1430   et  seq.] 


*  See  Note  at  end  of  Article. 


234  DYING  DECLARATION 

Illustrations. 

(a)  The    question    is,    whether    A   has    murdered    B. 

B  makes  a  statement  to  the  effect  that  A  murdered  him. 

B  at  the  time  of  making  the  statement  has  no  hope  of  re- 
covery, though  his  doctor  had  such  hopes,  and  B  lives  ten 
days  after  making  the  statement.  The  statement  is  deemed 
to   be   relevant. — 1 

B,  at  the  time  of  making  the  statement  (which  is  written 
down),  says  something,  which  is  taken  down  thus:  "I  make 
the  above  statement  with  the  fear  of  death  before  me,  and 
with  no  hope  of  recovery."  B,  on  the  statement  being  read 
over,  corrects  this  to  "with  no  hope  at  present  of  my  recov- 
ery." B  dies  thirteen  hours  afterwards.  The  statement  is 
deemed   to   be   irrelevant. — 2 

(b)  The  question  is,  whether  A  administered  drugs  to  a 
woman  with  intent  to  procure  abortion.  The  woman  makes 
a  statement  which  would  have  been  admissible  had  A  been 
on  his  trial  for  murder.  The  statement  is  deemed  to  be  ir- 
relevant.— 3 

(c)  The  question  is,  whether  A  murdered  B.  A  dying  dec- 
laration by  C  that  he  (C)  murdered  B  is  deemed  to  be  irrele- 
vant.— 4 

(d)  The  question  is,  whether  A  murdered  B. 

B  makes  a  statement  before  a  magistrate  on  oath,  and 
makes  her  mark  to  it,  and  the  magistrate  signs  it,  but  not  in 
the  presence  of  A,  so  that  her  statement  was  not  a  deposi- 
tion within  the  statute  then  in  force.  B,  at  the  time  when 
the  statement  was  made,  was  in  a  dying  state,  and  had  no 
hope  of  recovery.     The  statement  is  deemed  to  be  relevant. — 5 

GROUNDS   OF   ADMISSIBILITY. 

In   General. 

Constitutional  provision  that  in  all  criminal  prosecutions 
the  accused  shall  be  confronted  with  the  witnesses,  refers 
to  living  witnesses,  and  not  to  dying  declarations. — Peo- 
ple v.  Glenn,   10   Cal.   32;    Addington  v.   State,   8   Okl.   Cr. 

1  R.  v.  Mosley,  1  Moo.  97.  [2  Wigmore  Ev.,  §  1439.]  Peo- 
ple v.  Chin  Mook  Saw,  51  Cal.   597. 

2  R.   v.    Jenkins,   L,.    R.    1    C.   C.    R.    187. 

3  R.  v.  Hind,  Bell,  253,  following  R.  v.  Hutchinson,  2  B. 
&  C.  608,  n.,  quoted  in  a  note  to  R.  v.  Mead.  [2  Wigmore 
Ev.,   §  1432;  Wright  v.  State,  41  Tex.   246.] 

4  Gray's  Case,  Ir.  Cir.  Rep.  76;  State  v.  Bohan,  15  Kan.  418; 
Radford  v.   State,   33   Tex.  Cr.   520,  27  S.  W.  143. 

5  R.  v.  Woodcock,  1  East,  P.  C.  356.  In  this  case,  Eyre,  C. 
B.,  is  said  to  have  left  to  the  jury  the  question,  whether  the 
deceased  was  not  in  fact  under  the  apprehension  of  death.  1 
Leach,  504.  The  case  was  decided  in  1789.  It  is  now  settled 
that  the  question  is  for  the  judge.      [2  Wigmore  Ev.,   §   1449.] 


DYING  DECLARATION  235 

703,  130  P.  311;  State  v.  Saunders,  14  Or.  300,  12  P.  441; 
Burrell  v.  State,  18  Tex.  713;  Payne  v.  State,  45  Tex.  Cr. 
R.  564,  78  S.  W.  934;  State  v.  Baldwin,  15  Wash.  15,  45 
P.  650. 

Arkansas.  Statement  after  hope  was  gone  as  to  who 
killed  him  is  admissible,  where  declarant  had  opportunity 
to  see  and  know  who  did  the  shooting. — King  v.  State,  110 
Ark.  595,  162  S.  W.  1087. 

California.  It  need  not  be  shown  that  deceased  intended 
his  statement  to  be  a  dying  declaration. — People  v.  Yokum, 
118  Cal.  437,  50  P.  686. 

Colorado.  A  dying  declaration  is  only  admissible  where 
the  death  of  the  declarant  is  the  subject  of  the  charge 
of  the  homicide  on  trial,  and  the  circumstances  of  the 
death  are  the  subject  of  the  declaration. — Mora  v.  Peo- 
ple, 19  Colo.  255,  35  P.  179. 

Kansas.  The  admission  of  testimony  of  deceased  given 
at  a  preliminary  examination  does  not  render  incompetent 
evidence  of  dying  declarations.— State  v.  Wilson,  24 
Kan.  189. 

A  dying  declaration  is  hearsay  and  is  taken  out  of  the 
rule  excluding  such  evidence  because  of  reasons  of  neces- 
sity, and  because  it  is  supposed  that  a  realization  on  the 
part  of  the  declarant  of  the  certain  and  speedy  approach 
of  death  affords  as  powerful  incentive  to  tell  the  truth 
as  does  the  sanction  of  an  oath. — State  v.  Knoll,  69  Kan. 
767,  77  P.  580. 

Oklahoma.  Where  deceased  knew  he  was  to  die,  his 
declaration  is  admissible. — Hawkins  v.  State,  11  Okl.  Cr.  73, 
142  P.  1093. 

Oregon.  That  there  was  other  evidence  of  the  killing 
does  not  necessarily  preclude  the  admission  of  such  decla- 
rations.—State  v.  Saunders,  14  Or.  300,  12  P.  441. 
Texas.  Dying  declarations  can  only  be  admissible  where 
the  death  of  the  deceased  is  the  subject  of  the  charge, 
and  the  circumstances  of  the  death  are  the  subject  of  the 
declarations. — Craven  v.  State,  40  Tex.  Cr.  R.  78,  90  S. 
W.  316. 

A  dying  declaration  is  admissible,  though  there  are  eye 
witnesses  to  the  killing. — Lyles  v.  State,  48  Tex.  Cr.  R. 
119,  86  S.  W.  763. 


236  DYING  DECLARATION 

Washington.  If  the  dying  declaration  adds  a  link  in  the 
chain  of  evidence,  and  makes  it  possible  to  identify  the 
defendant,  it  is  admissible. — State  v.  Mayo,  42  Wash. 
540,  85  P.  251. 

Consciousness  of  Imminent  Death. 

In  order  to  render  a  dying  declaration  admissible  the 
declarant  must,  at  the  time  of  making  the  same,  be  con- 
scious of  impending  death,  and  without  hope  of  recovery; 
and  this  may  be  shown  not  only  by  what  the  injured  per- 
son said,  but  by  his  condition  and  the  nature  and  extent 
of  his  wounds.  (Mortal  wound;  stated  that  she  believed 
she  was  going  to  die). — Brennan  v.  People,  37  Colo.  256, 
86  P.  79. 

Arkansas:  Glover  v.  State,  116  Ark.  588,  172  S.  W.  876 
(spinal  cord  severed,  and  physician  in  a  manner  told  her 
she  was  dying,  and  she  appeared  to  realize  she  could  not 
recover). 

California:  People  v.  Vukojevich,  25  Cal.  App.  459,  143 
P.  1058  (pulmonary  artery  severed,  and  statement  made  to 
friend  immediately  after  stabbing,  and  died  one  or  two 
minutes  later) ;  People  v.  Level,  27  Cal.  App.  257,  149  P. 
772  (wound  necessarily  fatal;  stated  three  times  that  he 
was  dying) ;  People  v.  Lee,  17  Cal.  76  (said  he  was  going 
to  die,  and  sent  for  a  priest). 

Oregon:  State  v.  Gray,  43  Or.  446,  74  P.  927  (informed 
by  his  physician  that  he  could  not  recover,  and  signed  a 
statement);  State  v.  Thompson,  49  Or.  46,  88  P.  583 
(told  that  his  only  possible  chance  was  in  operation, 
though  he  would  not  probably  come  out  of  the  operation, 
and  died  while  the  anaesthetic  was  being  administered). 
Texas:  Cook  v.  State,  22  Tex.  App.  511,  3  S.  W.  749  (be- 
lief in  impending  death,  and  sent  for  clergyman) ;  Chris- 
tian v.  State,  72  Tex.  Cr.  R.  100,  161  S.  W.  101  (telling 
person  as  he  was  being  helped  into  an  ambulance  after 
receiving  the  fatal  shot,  to  take  his  gun,  as  he  never 
would  have  further  use  for  it). 

Washington:  State  v.  Mayo,  42  Wash.  540,  85  P.  251 
(Information  by  doctor,  and  stated  that  he  realized  he  was 
going  to  die). 

The  declarant  need  not  state  his  belief  in  the  near  ap- 
proach of  death,  when  his  condition  of  mind  is  evident 


DYING  DECLARATION  237 

from  his  conduct  and  surrounding  circumstances. — People 
v.  Sanchez,  24  Cal.  17;  Zipperian  v.  People,  33  Colo.  134, 
79  P.  1018;  Collins  v.  State,  46  Neb.  37,  64  N.  W.  432; 
State  v.  Fuller,  52  Or.  42,  96  P.  456;  State  v.  Ju  Nun, 
53  Or.  1,  97  P.  96;  Morgan  v.  State,  54  Tex.  Cr.  R.  542, 
113  S.  W.  934. 

Conscious  of  approaching  death. — State  v.  Roberts,  28 
Nev.  350,  82  P.  100;  Keaton  v.  State,  41  Tex.  Cr.  R.  621, 
57  S.  W.  725;  Lyles  v.  State,  48  Tex.  Cr.  R.  119,  86  S.  W. 
763;    State  v.  Power,  24  Wash.  34,  63  P.  1112. 

Without  hope  of  recovery.— State  v.  Knoll,  69  Kan.  767, 
77  P.  580;  People  v.  Tracy,  1  Utah  743. 
Arkansas.  Where  his  physician  told  deceased  that  he 
could  not  live,  and  he  expressed  his  concurrence,  It  is 
sufficient  foundation  for  the  admission  of  his  dying  decla- 
ration.—McDaniels  v.  State,  113  Ark.  598,  167  S.  W.  96. 
California.  An  undoubting  belief  existing  in  the  mind  of 
declarant  at  the  time  the  declarations  were  made,  that 
the  finger  of  death  is  upon  him,  is  indispensable  to  that 
sanction  which  the  law  enacts,  and  if  it  shall  appear,  In 
any  mode,  that  there  was  a  hope  of  recovery,  however 
faint  it  may  have  been,  still  lingering  in  his  breast,  that 
sanction  is  not  afforded,  and  the  statement  cannot  be  re- 
ceived.— People  v.  Sanchez,  24  Cal.  26. 

Proof  of  sense  of  death  impending  need  not  appear  from 
the  declaration  itself. — People  v.  Yokum,  118  Cal.  437, 
50  P.  686. 

Idaho.  Declarant  need  not  be  informed  by  physician  that 
he  was  about  to  die,  if  other  circumstances  show  that  it 
was  impending  and  he  believed  it. — State  v.  Yee  Wee,  7 
Ida.  188,  61  P.  588. 

Oklahoma.  Where  a  woman's  throat  was  cut  so  that  the 
windpipe  was  severed,  and  she  lived  only  a  few  minutes 
after  being  cut,  she  will  be  presumed  to  have  realized  that 
death  was  near,  so  as  to  admit  her  motions  in  answer 
to  questions.— Poling  v.   State,    (Old.  Cr.),   151  P.  895. 

Proof  that  deceased  died  within  four  hours  after  he  was 
shot,  that  his  wound  was  necessarily  fatal,  that  he  stated 
when  he  was  shot  that  "he  has  killed  me,"  and  that  he 
expressed  no  hope  of  recovery,  is  sufficient  foundation  to 


238  DYING  DECLARATION 

admit  a  statement  as  a  dying  declaration. — Carter  v.  State, 
(Okl.),  154  P.  337. 

Texas.  The  statement  by  deceased,  made  a  short  time 
before  death,  when  he  was  rational,  and  knew  he  was 
going  to  die,  and  had  no  hope  of  recovery,  is  admissible. — 
Corbitt  v.  State,  72  Tex.  Cr.  R.  396,  163  S.  W.  436. 

Hope   or    Expectation   of   Recovery.  . 

Any  hope  of  recovery,  however  slight,  though  death 
occur  very  soon,  renders  the  statement  inadmissible. — 
People  v.  Hodgdon,  55  Cal.  72;  Rokes  v.  People,  2  Neb. 
157;  Ledbetter  v.  State,  23  Tex.  Cr.  R.  247,  5  S.  W.  226. 
California.  "Believing  that  I  am  near  death,  and  realiz- 
ing that  I  may  not  recover,"  shows  that  deceased  had  not 
abandoned  all  hope,  though  she  dies  within  an  hour. — 
People  v.   Hodgdon,   55   Cal.   72. 

A  declaration  is  not  admissible,  though  deceased  has  a 
necessarily  fatal  wound,  where  he  said  that  the  doctor 
had  not  told  him  he  had  no  chance,  and  he  had  not  given 
up  hope.— People  v.  Smith,  164  Cal.  451,  129  P.  785. 
Idaho.  Repeated  statements  in  a  declaration,  that  the 
declarant  does  not  know  whether  he  will  get  well,  render 
it  inadmissible. — State  v.  Fong  Loon,  (Ida.),  158  P.  233. 
Kansas.  Subsequent  hope  of  recovery  does  not  affect  the 
admissibility  of  a  dying  declaration. — State  v.  Reed,  53 
Kan.   767,   37   P.   174. 

Statements  made  by  deceased  that  he  had  to  die  of 
the  whipping  he  had'  received  from  defendant,  and  that 
any  hour,  any  day,  he  might  die,  do  not  sufficiently  show 
a  sense  of  impending  death. — State  v.  Knoll,  69  Kan.  767, 
77  P.  580. 

Information   by   Physician. 
Idaho.     When  death  was  imminent  and  deceased  believed 
he  was  going  to  die,  his  declaration  is  admissible,  though 
he  had  not  been  informed  by  a  physician  that  he  was  about 
to  die.— State  v.  Yee  Wee,  7  Ida.  188,  61  P.  588. 

TIME    INTERVENING    BEFORE    DEATH. 

A  declaration  made  when  deceased  thought  he  was  go- 
ing to  die  is  admissible  though  death  did  not  occur  until 
some  time  thereafter: 


DYING  DECLARATION  239 

California:  People  v.  Vernon,  35  Cal.  49  (nine  or  ten 
hours  thereafter) ;  People  v.  Cord,  157  Cal.  562,  108  P. 
511  (death  not  occurring  for  two  weeks,  within  which 
time  deceased  had  recovered  sufficiently  to  go  out  riding 
and  walk  up  stairs  with  assistance,  and  physicians  thought 
he  would  recover). 

Nebraska:  Fitzgerald  v.  State,  11  Neb.  577,  10  N.  W. 
495  (two  weeks  after,  and  the  day  before  his  death  he 
expressed  hope  of  recovery) ;  State  v.  Hennessy,  29  Nev. 
320,  90  P.  221    (two  days). 

Texas:  Fulcher  v.  State,  28  Tex.  App.  465,  13  S.  W. 
750  (a  month  and  a  half,  no  change  in  condition  of  mind 
being  apparent);  Francis  v.  State,  (Tex.  Cr.  R.),  170  S. 
W.  779  (two  days  thereafter,  state  of  mind  being  presumed 
to   continue). 

Washington:  State  v.  Webster,  21  Wash.  63,  57  P.  361 
(two  days);   State  v.  Lewis,  8  Wash.  532,  141  P.  1025. 

RATIFICATION    OF    PRIOR    DECLARATION. 

Reiteration  of  the  statement  when  conscious  of  death 
renders  it  admissible,  though  when  it  was  first  made 
declarant  thought  he  would  pull  through.— People  v. 
Mammilato,  168  Cal.  207,  142  P.  58;  Bryant  v.  State,  35 
Tex.  Cr.  R.  394.  33  S.  W.  978. 

SUBJECT    MATTER    AND    RELEVANCY. 

California.  Where  there  was  evidence  connecting  defend- 
ant with  a  conspiracy  to  murder,  the  dying  declarations  of 
the  victim  as  to  who  did  the  shooting  are  admissible 
against  defendant  separately  tried,  though  another  was 
stated  herein  as  having  done  the  act. — People  v.  Moran, 
144  Cal.  48,  77  P.  777. 

Kansas.  Dying  declarations  are  restricted  to  the  act  of 
killing  and  the  circumstances  immediately  attending  the 
act,  and  statements  relating  to  former  and  distinct  trans- 
actions not  immediately  connected  with  the  killing,  can 
not  be  received.  (That  he  and  defendant  were  friendly 
and  had  no  difficulty  in  the  afternoon,  etc.) — State  v. 
O'Shea.  60  Kan.  772,  57  P.  970. 

Nevada.  Identification  of  the  men  who  shot  him  and 
pushed  him  off  the  cars,  is  admissible  as  a  dying  declara- 
tion.—State  v.  Roberts,  28  Nev.  350,  82  P.  100. 


240  DYING  DECLARATION 

Texas.  Telling  his  wife  about  his  financial  affairs,  and 
that  he  had  made  ample  provision  for  her,  is  no  part  of 
a  dying  declaration,  though  it  be  admissible  to  show  con- 
sciousness of  impending  death. — Hays  v.  State,  73  Tex. 
Cr.   R.   58,   164   S.  W.   841. 

Utah.  "Dr.  C.  performed  an  operation  on  me  (admissible), 
for  the  purpose  of  performing  an  abortion"  (inadmissible). 
—State  v.  Carrington,  15  Utah  480,  50  P.  526. 
Washington.  A  statement  as  to  prior  threats  of  defend- 
ant is  no  part  of  a  dying  declaration. — State  v.  Moody,  18 
Wash.  165,  51  P.  356. 

Wyoming.  Declarations  of  deceased  that  he  and  defend- 
ant had  had  frequent  quarrels,  and  that  defendant  had  in 
effect  challenged  him  to  fight  with  pistols  a  few  days 
before,  are  not  admissible  as  part  of  a  dying  declaration. 
—Foley  v.  State,  11  Wyo.  464,  72  P.  627. 

Conclusions  and   Opinions. 

Declarations  consisting  of  conclusions,  opinions  and  be- 
liefs, which  would  not  be  received  if  declarant  were  a  wit- 
ness, are  not  admissible: 

California:     People  v.  Cyty,  11  Cal.  App.  702,   106  P.  257 
(that  he  had  expected  no  trouble  with  defendant). 
Kansas:     State  v.    O'Shea,   60   Kan.   772,   57   P.   970    (that 
defendant  knew  declarant  carried  $300,  etc.). 
Oklahoma:     Mulkey   v.    State,    5    Okl.    Cr.    75,    113   P.    532 
("He  foully  murdered  me  without  warning"). 
Texas:     Williams  v..  State,   40  Tex.   Cr.  R.  497,   51  S.  W. 
220   ("When  they  came  in,  I  treated  them  perfectly  gen- 
tlemanly.    They  added   insult   after   insult") ;    Bateson   v. 
State,  46  Tex.  Cr.  R.  34,  80  S.  W.  88  ("They  murdered  me 
without  cause");   Sorrell  v.  State,  (Tex.  Cr.  R.),  169  S.  W. 
299  ("I  was  shot  down  like  John  Ross"). 
Arkansas.     A    mere   expression    of   opinion   by   the    dying 
man  is  not  admissible  as  a  dying  declaration,  and  it  is  im- 
material  whether  the   fact  that  the   declaration  is   mere 
opinion  appears  from  the  statement  itself  or  from  other 
undisputed  evidence  showing  that  it  was  impossible  for 
the  declarant  to  have  known  the  facts  stated.     (Physical 
impossibility  for  declarant  to  have  seen  who  shot  him.) — 
Jones  v.  State,  52  Ark.  347,  12  S.  W.  704. 


DYING  DECLARATION  241 

California.  "V.  has  killed  me,"  uttered  by  deceased  im- 
mediately after  being  stabbed  through  the  pulmonary 
artery,  death  occurring  two  minutes  afterwards,  is  not  an 
expression  of  opinion. — People  v.  Vukojevich,  25  Cal.  App. 
459,   143  P.   1058. 

Colorado.  Declaration  of  deceased  that  he  had  been 
"murdered"  is  the  expression  of  a  mere  opinion,  and  is  in- 
admissible to  establish  the  degree  of  the  homicide. — 
Jamison  v.  State,  52  Colo.  11,  119  P.  474. 
Montana.  That  the  shooting  was  without  provocation, 
that  there  was  not  any  trouble  between  deceased  and  de- 
fendant and  that  deceased  was  not  armed  at  the  time  of 
the  shooting,  are  not  matters  of  opinion. — State  v.  Crean, 
43  Mont.  47,  114  P.  603. 

Oregon.     "He   shot   me   down   like   a   dog,"   admissible. — 
State  v.  Saunders,  14  Or.  304,  12  P.  441. 
Texas.     Statement  of  wife  that  her  husband  poisoned  her 
by  administering  strychnine  through  a  syringe;  admissible. 
—Rice  v.  State,  49  Tex.  Cr.  R.  569,  94  S.  W.  1024. 
MANNER  AND  FORM  OF  DECLARATION. 

Both  written  and  oral  dying  declarations  are  admisible. 
—Dick  v.  State,  10  Okl.  Cr.  497,  139  P.  322;  State  v.  Car- 
rington,  15  Utah  480,  50  P.  526. 

The  fact  that  a  written  declaration  was  admitted  in 
evidence  does  not  preclude  the  admission  of  oral  declara- 
tions made  at  other  times. — Zipperian  v.  People,  33  Colo. 
134,  79  P.  1018;  Morris  v.  State,  6  Okl.  Cr.  29,  115  P.  1030. 

Formal  parts  prepared  out  of  the  presence  of  declarant, 
but  the  whole  declaration  read  over  to  him  and  signed 
by  him,  admissible.— State  v.  Wilmbusse,  8  Ida.  608,  70 
P.  849;  Updike  v.  State,  9  Okl.  Cr.  124,  130  P.  1107;  State 
v.  Baldwin,  15  Wash.  15,  45  P.  650. 

Colorado.  The  fact  that  a  justice  of  the  peace  who  re- 
duced a  dying  declaration  to  writing  filed  it  as  a  criminal 
complaint  does  not  preclude  its  admissibility. — Zipperian 
v.  People,  33  Colo.  134,  79  P.  1018. 

Kansas.     Although  a  memorandum  of  a  dying  declaration 
was  made,  witnesses  may  testify  as  to  it,  without  produc- 
ing the  memorandum. — State  v.  Wilson,  23  Kan.  189. 
Oklahoma.     When  several  complete  statements  are  made 
at  different  times  of  material  facts  concerning  the  cause 


242  DYING  DECLARATION 

and  circumstances  of  the  homicide,  one  of  which  was  re- 
duced to  writing,  the  prosecution  is  not  restricted  to  the 
writing,  but  may  offer  the  oral  declarations. — Dick  v. 
State,  10  Okl.  Cr.  497,  139  P.  322. 

Texas.  Although  a  dying  declaration  was  committed  to 
writing,  oral  proof  was  admissible,  where  the  writing  was 
lost  and  could  not  be  found  after  careful  search. — Rodri- 
guez v.  State,  (Tex.  Cr.  R.),  186  S.  W.  335. 
Utah.  When  a  declaration  has  been  reduced  to  writing 
and  signed  by  decedent,  parol  evidence  is  inadmissible 
to  prove  such  declaration  unless  the  loss  or  absence  of 
the  writing  is  accounted  for. — People  v.  Tracy,  1  Utah  343. 

The  fact  that  a  writing  to  which  the  dying  declaration 
had  been  committed  was  not  signed  does  not  render  it 
inadmissible.— State  v.  Carrington,  15  Utah  480,  50  P.  526. 

QUESTIONS,   AND   MANNER   OF   COMMUNICATING. 
California.     Leading    questions    to    declarant    are    permis- 
sible,   and    he    may   even    be    urged    to    make    statement, 
though  his  credibility  be  impeached. — People  v.   Sanchez, 
24  Cal.  17. 

Kansas.  Written  by  another  and  partly  brought  out  by 
questions,  the  answers  to  which  were  communicated  by 
signs,  and  read  and  signed  by  declarant,  admissible. — 
State  v.  Morrison,  64  Kan.  669,  68  P.  48. 
Nevada.  Narrative  in  form  and  questions  not  included  in 
the  writing.— State  v.  Williams,  28  Nev.  395,  82  P.  353. 
Texas.  Questions  allowable,  when  not  suggesting  answer. 
—Phillips  v.  State,  50  Tex.  Cr.  R.  481,  98  S.  W.  868. 

A  dying  declaration  is  admissible,  though  declarant's 
name  was  signed  by  another  and  was  made  in  response 
to  questions. — Burgess  v.  State,  (Tex.  Cr.  R.),  181  S. 
W.  465. 

Replies  by  nods  as  to  who  hit  her  admissible,  the  physi- 
cian having  told  her  that  she  was  about  to  die. — Thomp- 
son v.  State,   (Tex.  Cr.  R.),  187  S.  W.  204. 

PROSECUTIONS    IN    WHICH    DECLARATIONS   ARE 
ADMISSIBLE. 

Dying  declarations  are  not  admissible  when  the  crime 
charged  is  the  homicide  of  any  other  person  than  the 
declarant,  even  though  such  other  and  declarant  were 
killed  in  the  same  attack  (and  were  husband  and  wife). — 


DYING  DECLARATION  243 

State  v.  Bohan,  15  Kan.  407;  State  v.  Fitzhugh,  2  Or.  227; 
Krebs  v.  State,  3  Tex.  App.  34S;  Radford  v.  State,  33  Tex. 
Cr.  R.  520,  27  S.  W.   143. 

PERSONS    AS    TO    WHOM    DECLARATIONS    ARE 
ADMISSIBLE. 

Dying  declarations  are  admissible  on  behalf  of  the  ac- 
cused as  well  as  for  the  prosecution. — People  v.  Southern, 
120  Cal.  645,  53  P.  214;  State  v.  Saunders,  14  Or.  304,  12 
P.  441. 

COMPETENCY  OF  DECLARANT. 

Dying  declarations  cannot  be  rejected  on  account  of  the 
religious  belief  of  the  declarant. — People  v.  Sanford,  4"3 
Cal.  29,  34;  People  v.  Chin  Mook  Sow,  51  Cal.  597;  State 
v.  Ah  Lee,  8  Or.  214. 

California.  It  is  not  to  be  .presumed  that  because  de- 
clarant was  an  adherent  of  a  heathenish  religion  a  dying 
declaration  by  him  would  not  be  under  the  same  degree 
of  solemnity  as  one  given  by  a  person  charged  with  re- 
ligious convictions  of  a  more  rational  and  civilized  order. 
—People  v.  Lim  Foon,  29  Cal.  App.  270,  155  P.  477. 
Idaho.  Before  a  dying  declaration  is  admitted  in  evidence 
the  competency  of  the  declarant  must  be  shown. — State  v. 
Wilmbusse,  8  Ida.  608,  70  P.  849. 

That  the  declarant  was  incompetent  two  days  after- 
wards is  no  proof  that  he  was  not  competent  when  the 
declaration  was  made. — State  v.  Wilmbusse,  8  Ida.  608, 
70  P.  849. 

Washington.  The  fact  that  deceased  had  been  convicted 
for  cattle  stealing  does  not  render  his  dying  declaration 
inadmissible. — State  v.   Baldwin.    15   Wash.   15,   45   P.   650. 

PRELIMINARY  INQUIRY. 
Whether  a  sufficient  foundation  has  been  laid  to  admit 
a  statement  as  a  dying  declaration  is  a  question  for  the 
court.— People  v.  Cord,  157  Cal.  562,  108  P.  511;  Harris  v. 
People,  55  Colo.  407,  135  P.  785;  Johnson  v.  State,  88 
Neb.  328,  129  X  \V.  281:  Bilton  v.  Territory,  1  Old.  Cr. 
566,  99  P.  163;  State  v.  Fuller,  52  Or.  42,  96  P.  (56. 
Arkansas.  The  question  whether  a  declaration  was  made 
in  extremis  may  be  submitted  to  the  jury. — Tolliver  v. 
State,  113  Ark.  142.  167  S.  W.  703. 


244  DYING  DECLARATION 

Colorado.  Question  for  court,  as  to  consciousness  of  ap- 
proaching death. — Brennan  v.  People,  37  Colo.  256,  86 
P.  79. 

Montana.  Whether  the  jury  shall  be  excused  during  the 
preliminary  inquiry  is  a  matter  within  the  sound  discre- 
tion of  the  court.— State  v.  Crean,  43  Mont.  47,  114  P.  603. 
Nevada.  Whether  a  dying  declaration  is  admissible  is  a 
question  for  the  court,  with  the  jury  withdrawn. — State  v. 
Scott,  37  Nev.  412,  142  P.  1053. 

CONTRADICTION    OR    IMPEACHMENT. 

Dying  declarations  may  be  impeached  by  showing  that 
the  deceased  made  other  statements  inconsistent  there- 
with, in  relation  to  the  cause  and  circumstances  of  the 
homicide. — People  v.  Lawrence,  21  Cal.  368;  Salas  v. 
People,  51  Colo.  461,  118  P.  992;  State  v.  Shaffer,  23  Or. 
555,  32  P.  545;  State  v.  Fuller,  52  Or.  42,  96  P.  546;  Mc- 
Corquodale  v.  State,  (Tex.  Cr.  R.),  98  S.  W.  879;  State  v. 
Mayo,  42  Wash.  540,  85  P.  251. 

Oklahoma.  A  dying  declaration  may  be  contradicted  by 
proof  of  contrary  statements,  or  otherwise. — Morris  v. 
State,  6  Okl.  Cr.  29,  115  P.  1030. 

Where  other  and  different  declarations  are  made  con- 
temporaneously or  subsequently  to  the  written  statement, 
the  defense  may  show  that  such  statements  are  incon- 
sistent with  or  contrary  to  the  written  one. — Addington  v. 
State,  8  Okl.  Cr.  703,  130  P.  711. 

Should  different  declarations  of  deceased  be  incon- 
sistent or  contradictory,  the  defense  may  show  that  fact. 
—Dick  v.  State,  10  Okl.  Cr.  497,  139  P.  322. 
Oregon.  No  foundation  need  be  laid  for  the  impeachment 
of  a  dying  declaration. — State  v.  Fuller,  52  Or.  42,  96 
P.  456. 

Texas.  Where  defendant  introduced  testimony  tending  to 
show  that  deceased  refused  to  make  a  statement  or  dying 
declaration,  the  sister  of  deceased  may  testify  as  to  a  state- 
ment he  made  to  her. — Mansell  v.  State,  (Tex.  Cr.  R.), 
182  S.  W.  1137. 

PROOF    AND    WEIGHT    OF    DECLARATION. 

The  weight  and  credit  to  be  given  to  a  dying  declaration 
is  for  the  jury.— State  v.  Byrd,  41  Mont.  585,  111  P.  487; 


DECLARATIONS,  BUSINESS,  ETC.  245 

Johnson  v.  State,  88  Neb.  328,  129  N.  W.  281;  Bilton  v. 
Territory,  1  Okl.  Cr.  566,  99  P.  163;  State  v.  Fuller,  52  Or. 
42,   96   P.   456. 

A  dying  declaration  is  not  entitled  to  the  same  weight 
as  testimony  given  under  oath. — State  v.  Scott,  34  Nev. 
412,  142  P.  1053;  State  v.  Valentia,  19  N.  M.  113,  140  P. 
1119. 

Texas.  It  is  sufficient  if  the  substance  of  the  declaration 
be  given. — Roberts  v.  State,  5  Tex.  App.  141. 

NOTE    XVII. 
(To   Article   26.) 

As  to  dying  declarations,  see  [2  Wigmore  Ev.,  §§  1431-1452] 
1  Ph.  Ev.  239-252;  T.  E.  ss.  644-652;  Best,  s.  505;  Starkie,  32 
&  38;  3  Russ.  Cri.  250-272  (perhaps  the  fullest  collection  of 
the  cases  on  the  subject);  Roscoe,  Crim.  Ev.  31-32.  R.  v. 
Baker,  2  Mo.  &  Ro.  53,  is  a  curious  case  on  this  subject.  A 
and  B  were  both  poisoned  by  eating  the  same  cake.  C  was 
tried  for  poisoning  A.  B's  dying  declaration  that  she  made 
the  cake  in  C's  presence,  and  put  nothing  bad  in  it,  was  ad- 
mitted as  against  C,  on  the  ground  that  the  whole  formed 
one   transaction. 

Article  27.* 

declarations  made  ix  the  course  of  business  or  profes- 
sional duty. 

A  declaration  is  deemed  to  be  relevant  when  it 
was  made  by  the  declarant  in  the  ordinary  course 
of  business,  or  in  the  discharge  of  professional 
duty,  at  or  near  the  time  when  the  matter  stated 
occurred,  (a)  and  of  his  own  knowledge. 

Such  declarations  are  deemed  to  be  irrelevant 
except  so  far  as  they  relate  to  the  matter  which 
the  declarant  stated  in  the  ordinary  course  of  his 
business  or  duty,  (b) 

*  See  note  at  end  of  Article. 

a  Doe  v.  Turford,  3  B.  &  Ad.  8'JO.      [2  Wigmore  Ev.,  §  1550.] 

c    [2   Wigmore   Ev.,    §    1537   et   seq.] 


246  DECLARATIONS,  BUSINESS,  ETC. 

Illustrations. 

(a)  The  question  is,  whether  A  delivered  certain  beer  to  B. 
The   fact   that  a   deceased   drayman   of  A's,   on   the   evening 

of  the  delivery,  made  an  entry  to  that  effect  in  a  book  kept 
for  the  purpose,  in  the  ordinary  course  of  business,  is  deemed 
to  be  relevant. — 1 

(b)  The  question  is,  what  were  the  contents  of  a  letter 
not    produced   after    notice. 

A  copy  entered  immediately  after  the  letter  was  written, 
in  a  book  kept  for  that  purpose,  by  a  deceased  clerk,  is 
deemed  to  be  relevant.— 2 

(c)  The  question  is,  whether  A  was  arrested  at  Paddlng- 
ton,   or  in  South   Molton   street. 

A  certificate  annexed  to  the  writ  by  a  deceased  sheriff's 
officer,  and  returned  by  him  to  the  sheriff,  is  deemed  to  be 
relevant  so  far  as  it  relates  to  the  fact  of  the  arrest;  but 
irrelevant  so  far  as  it  relates  to  the  place  where  the  arrest 
took  place. — 3 

(d)  The  course  of  business  was  for  A,  a  workman  In  a 
coal  pit,  to  tell  B,  the  foreman,  what  coals  were  sold,  and  for 
B  (who  could  not  write)  to  get  C  to  make  entries  in  a  book 
accordingly. 

The  entries  (A  and  B  being  dead)  are  deemed  to  be  irrele- 
vant, because  B,  for  whom  they  were  made,  did  not  know 
them  to  be  true. — 4 

(e)  The  question  is,  what  is  A's  age.  A  statement  by  the 
incumbent  in  a  register  of  baptisms  that  he  was  baptized 
on  a  given  day  is  deemed  to  be  relevant.  A  statement  in  the 
same  register  that  he  was  born  on  a  given  day  is  deemed  to 
be  irrelevant,  because  it  was  not  the  incumbent's  duty  to 
make  it. — 5 

ENTRIES     IN     COURSE     OF     BUSINESS    OR     PROFES- 
SIONAL  DUTY. 
Admissibility  In  General. 
Entries  in  books  made  in  the  ordinary  course  of  busi- 
ness at  or  near  the  time  of  the  transaction  to  which  they 
relate,  upon  proof  of  the  handwriting  of  the  person  who 
made  such  entries,  in  case  of  his  death  or  absence  from 
the    jurisdiction,    are    admissible. — Pacific    Mut.    Life    Ins. 
Co.  v.  O'Neil,  36  Okl.  792,  130  P.   270;    Raski  v.  Wise,  56 

1  Price  v.  Torrington,  1  S.  L.  C.  328,  7th  ed. 

2  Pritt  v.   Fairclough,   3   Camp.   305. 

3  Chambers  v.  Bernasconi,  1  C.  M.  &  R.  347;  see,  too, 
Smith   v.   Blakey,   L.   R.   2   Q.   B.   326.  * 

4  Brain  v.  Preece,  11   M.   &  W.   773. 

5  R.   v.  Clapham,   4  C.  &  P.   29. 


DECLARATIONS,  BUSINESS,  ETC.  247 

Or.  72,  107  P.  984;  Pioneer  Sand  &  Gravel  Co.  v.  Interna- 
tional Contract  Co.,  70  Wash.   123,  126  P.  84. 

The  admissibility  of  books  of  account  is  to  be  deter- 
mined from  their  appearance  and  character,  the  employ- 
ment and  education  of  the  one  who  kept  them,  the  man- 
ner in  which  other  and  similar  accounts  were  entered  in 
the  book,  and  the  circumstances  of  the  case. — Holden  v. 
Spier,  65  Kan.  412,  70  P.  348;  Lewis  v.  England,  14  Wyo. 
128,  82  P.  869. 

Arkansas.  Record  of  the  number  of  the  various  kinds  of 
logs  removed  by  defendant  from  certain  land  was  inad- 
missible when  it  was  not  shown  by  whom  it  was  made, 
that  it  was  made  at  or  near  the  time  the  timber  was  cut 
and  in  the  regular  course  of  business,  and  that  the  party 
who  made  it  cannot  be  produced. — Chicago  Mill  &  Lumber 
Co.  v.  Osceola  Land  Co.,  94  Ark.  183,  126  S.  W.  380. 
California.  A  blacksmith's  books  are  admissible,  accom- 
panied by  his  proof  as  to  the  manner  of  keeping,  and 
reputation  of  keeping  correct  accounts  by  persons  who 
have  had  dealings  with  him. — Landis  v.  Turner,  14  Cal.  573. 

Plaintiff's  books  containing  credits  are  admissible  to 
fix  amounts  to  be  deducted  from  amount  of  salary  claimed 
by  him,  but  not  to  determine  the  amount  of  such  salary. — 
Bushnell  v.  Simpson,   119  Cal.  658,   51  P.  1080. 

Books  containing  entries  showing  that  goods  were 
shipped  to  one  party  and  charged  to  another  are  inad- 
missible, where  the  manager  directing  the  entry  was  not 
called. — Butler  v.  Estrella  Raisin  Vineyard  Co.,  124  Cal. 
239,  56  P.  1040. 

An  entry  in  plaintiff's  account  book  of  a  transaction 
not  connected  with  his  business  does  not  affect  its  admis- 
sibility as  to  those  matters  properly  entered.  (Entry  of 
a  loan.)—  Yick  Wo  v.  Underhill,  5  Cal.  App.  519,  90  P.  967. 

Shop  books  were  admitted  by  the  courts  as  exceptions 
to  the  general  rule  excluding  hearsay  evidence  in  order 
to  prevent  a  total  failure  of  justice. — San  Francisco  Team- 
ing Co.  v.  Gray,  11  Cal.  App.  314,  104  P.  999. 

Book  of  account  properly  authenticated  by  preliminary 
proof  are  admissible  in  evidence,  but  the  proper  founda- 
tion must  be  laid.  (Requisites  of  such  preliminary  proof 
stated.)— Chan  Kin  Sing  v.  Gordon,  171  Cal.  28,  151  P.  657. 


248  DECLARATIONS,  BUSINESS,  ETC. 

Colorado.  It  seems  that  statutes  providing  for  prelim- 
inary testimony  for  the  introduction  of  books  of  account 
do  not  change  the  common  law  rules  not  inconsistent 
therewith. — Davie  v.  Lloyd,  38  Colo.  250,  88  P.  446. 

The  account  book  of  an  attorney  charging  a  person 
named  with  the  attorney's  fee  for  defending  a  third  per- 
son under  a  criminal  charge,  is  not  admissible  to  estab- 
lish the  amount  of  the  fee  or  the  value  of  the  services, 
where  there  is  no  independent  competent  evidence  to  show 
the  attorney's  employment  by  such  third  person,  and  that 
fact  is  in  issue. — Young  v.  United  States  Bank  &  Trust 
Co.,  27  Colo.  App.  331,   148  P.  919. 

Kansas.  Account  books  proved  to  be  books  of  original 
entry  are  original  evidence. — Anthony  v.  Stinson,  4  Kan. 
211. 

Nebraska.  There  must  appear  by  the  book  itself  to  be 
a  continuous  dealing  with  persons  generally,  or  several 
items  of  charges  at  different  times  to  the  adverse  party. 
—Anderson  v.  Beeman,  52  Neb.  387,  72  N.  W.  361;  Atkins 
v.  Seeley,  54  Neb.  688,  74  N.  W.  1100. 

The  statute  must  be  complied  with  in  order  to  render 
books  of  account  admissible. — Atkins  v.  Seeley,  54  Neb. 
688,  74  N.  W.  1100. 

New  Mexico.  Under  a  statute  admitting  books  of  account 
where  the  party  kept  no  clerk,  or  where  the  clerk  was 
dead  or  inaccessible,  the  fact  that  a  physician's  wife  from 
time  to  time  made  entries  in  such  books  from  his  dicta- 
tion did  not  constitute  her  a  clerk  so  as  to  render  the 
books  inadmissible. — Radcliffe  v.  Chavez,  15  N.  M.  258, 
110  P.  699. 

Oklahoma.  Contractor's  books  of  original  entries  are  ad- 
missible to  prove  work  done  and  material  furnished. — 
First  Nat.  Bldg.  Co.  v.  Vandenberg,  29  Okl.  583,  119  P.  224. 

Books  of  account  consisting  of  entries  made  at  or  near 
the  time  of  the  transaction,  from  memoranda  not  com- 
piled or  preserved  in  book  form,  nor  otherwise  in  respect 
to  convenience  similarly  available,  such  as  reports  of 
salesmen,  are  admissible. — Navarre  v.  Honea,  41  Okl.  480, 
139  P.  310. 

Oregon.  Books  of  a  merchant  are  secondary  evidence  of 
what  is  written  therein,  and  are  admissible  to  prove  an 


DECLARATIONS,  BUSINESS,  ETC.  249 

account  only  when  demanded  by  necessity,  such  as  the 
death  or  absence  of  the  clerk  who  kept  the  account. — 
Raski  v.  Wise,  56  Or.  72,  107  P.  984. 

South  Dakota.  Books  of  an  executor  showing  no  payment 
of  mortgage  are  admissible  in  a  suit  by  his  successor  to 
foreclose  a  mortgage.— Mead  v.  Mead,  28  S.  D.  131,  132 
N.  W.  701. 

Texas.  Books  containing  weights  of  cattle  received  and 
sold  by  a  commission  house,  the  items  being  transferred 
in  the  regular  course  of  business,  from  slips  of  paper  upon 
which  the  actual  weigher  had  indorsed  such  weights,  were 
admissible,  the  weigher  not  being  available. — Atchison,  T. 
&  S.  F.  Ry.  Co.  v.  Williams,  38  Tex.  Civ.  App.  405,  86  S. 
W.  38. 

To  authorize  the  admission  of  book  accounts  in  evi- 
dence, it  must  be  proved:  (1)  That  the  book  or  books 
contain  original  entries  of  transactions  pertinent  to  the 
business  in  question.  (2)  It  must  appear  that  the  entries 
were  made  in  the  regular  course  of  business  at  or  near 
to  the  time  the  transactions  were  had.  (3)  That  the 
entries  must  be  such  as  to  indicate  what  the  charge  is 
for;  that  is,  what  the  transaction  was.  (4)  That  the 
entries  were  made  by  one  who  was  authorized  to  do  so, 
and  that  he  did  the  acts  so  recorded  himself,  or  that  he 
made  the  record  upon  information  derived  from  one  who 
was  authorized  to  do  so.  (5)  That  the  transactions  were 
regularly  entered,  and  that  the  books  were  regularly  kept. 
—Stark  v.  Burkitt,  103  Tex.  437,  129  S.  W.  343. 
Washington.  A  man's  book  is  not  testimony  in  his  own 
behalf  touching  the  receipts  of  money  by  him,  though  it  be 
a  book  of  original  entries  containing  the  accounts  and 
the  credits  of  moneys  paid  thereon. — Schlottfeldt  v.  Bull, 
18  Wash.  64,  50  P.  590. 

Personal  Knowledge  of  Maker. 
Washington.  Books  containing  amount  of  lumber  scaled, 
transferred  by  plaintiff  from  items  put  upon  boards  and 
pieces  of  paper  by  his  employees  and  handed  to  him,  in- 
admissible.— Tingley  v.  Fairhaven  Land  Co.,  9  Wash.  34,  36 
P.  1098. 

Books  of  account  of  an  electric  company  purporting  to 
show  the   number  of  nightly   performances   at   a   theater 


250  DECLARATIONS,  BUSINESS,  ETC. 

during  each  month,  the  entries  being  at  the  end  of  each 
month  compiled  from  newspaper  statements  and  from  the 
reports  of  the  company's  collectors,  are  inadmissible  to 
show  the  amount  of  light  furnished. — Union  Elec.  Co.  v. 
Seattle  Theatre  Co.,  18  Wash.  213,  51  P.  367. 
Subject  Matter. 

Books  containing  but  one  entry,  and  that  simply  a 
memorandum  of  the  transaction,  are  inadmissible. — 
Phoenix  Ins.  Co.  v.  Public  Parks  Amusement  Co.,  63  Ark. 
187,  37  S.  W.  959;  Metzger  v.  Burnett,  5  Kan.  App.  374, 
48  P.  599;  Ryan  v.  Dunphy,  4  Mont.  356,  5  P.  324. 

The  entries  must  relate  to  matters  in  the  regular  course 
of  business,  and  cannot  be  used  to  prove  items  that  are 
not  properly  the  subject  of  book  accounts: 
Texas:  Tobler  v.  Austin,  (Tex.  Civ.  App.),  71  S.  W.  407 
(memorandum  as  to  when  a  certain  contract  was  exe- 
cuted); Bouldin  v.  Atlantic  Rice  Mills  Co.,  (Tex.  Civ. 
App.),  86  S.  W.  795  (quality,  condition  and  grade  of  de- 
fendant's goods,  sold  by  plaintiffs  on  defendant's  account) ; 
Luttrell  v.  Parry,  (Tex.  Civ.  App.),  129  S.  W.  865  (terms 
of  special  contract  to  make  plans  and  specifications) ; 
Callen  v.  Collins,  (Tex.  Civ.  App.),  135  S.  W.  651  (mem- 
orandum of  amount  of  timber  scaled,  entered  in  scale 
book). 

California.  An  entry  by  an  attorney  stating  an  agreed 
fee  to  be  one-half  of  amount  recovered  is  inadmissible  as 
being  merely  a  memorandum  of  a  special  contract. — 
Batcheller  v.  Whittier,  12  Cal.  App.  262,  107  P.  141. 
Colorado.  Inventory  of  stock  of  goods  called  off  by  ex- 
pert and  written  down  by  another,  both  witnesses  testify- 
ing, is  admissible. — Burchinell  v.  Koon,  8  Colo.  App.  463, 
46  P.  932. 

Nebraska.  Hotel  registers,  without  proof  that  the  names 
thereon  are  true  entries  of  the  guests,  that  they  were 
paying  guests,  or  of  the  duration  of  their  visits,  are  in- 
admissible to  prove  the  extent  of  business  of*such  hotel. 
— Wittenburg  v.  Mollyneaux,  55  Neb.  429,  75  N.  W.  835. 
Oklahoma.  It  is  not  error  to  exclude  entries  in  books  of 
account  where  such  entries  do  not  relate  to  the  trans- 
action which  is  the  subject  of  inquiry. — Drumm-Flato  Com- 
mission Co.  v.  Edmisson,  17  Okl.  344,  87  P.  311. 


DECLARATIONS.  BUSINESS,  ETC.  251 

Texas.  Relay  copies  of  a  message  taken  from  the  records 
at  different  points  on  its  passage  inadmissible. — Buchanan 
v.  Western  Union  Tel.  Co.,  (Tex.  Civ.  App.),  100  S.  W.  974. 
Utah.  Field  books  of  a  mining  company,  showing  places 
where  work  was  done,  etc.,  kept  solely  for  the  company's 
own  purposes  and  in  the  administration  of  its  internal 
affairs,  are  inadmissible  in  a  suit  by  a  stranger  for  tres- 
pass in  taking  ore. — Eureka  Hill  Min.  Co.  v.  Bullion  Beck 
&  Champion  Co.,  32  Utah  236,  90  P.  157. 
Wyoming.  Entries  by  deceased  upon  a  calendar  at  the 
end  of  certain  months,  as  "S.  paid  for  a  month,"  and  "S. 
paid  to  this  day  in  full,"  not  specifying  any  amounts,  and 
not  shown  to  have  been  kept  in  the  usual  course  of  busi- 
ness, are  inadmissible. — Hay  v.  Peterson,  6  Wyo.  419,  45 
P.   1073. 

Cash  Entries. 
California.  Entry  of  cash  loaned  by  a  restaurant  keeper, 
a  transaction  not  connected  with  his  business,  is  inadmis- 
sible.—Yick  Wo  v.  Underhill,  5  Cal.  App.  519,  90  P.  967. 
Oregon.  Charges  against  defendant  for  cash  advanced  to 
third  persons,  not  shown  to  have  been  money  loaned  to 
defendant  or  furnished  to  others  on  his  request,  are  in- 
admissible.— Harmon  v.  Decker,  41  Or.  587,  68  P.  11. 
Washington.  A  timekeeper  and  bookkeeper  suing  for 
cash  advanced  and  for  services  rendered  may  introduce  in 
evidence  books  of  defendant  showing  money  advanced 
by  him,  though  the  entries  were  made  by  himself,  where 
the  books  were  made  in  the  regular  course  of  business 
and  the  items  of  advances  were  interspersed  with  other 
items  pertaining  to  the  business. — Robertson  v.  O'Neill. 
67  Wash.  121,  120  P.  884. 

Wyoming.  Debtor's  books  of  accounts  admissible  to  show 
payment  to  creditors.— Hay  v.  Peterson,  6  Wyo.  419,  45 
P.  1073. 

Where  cash  entries  are  made  as  a  part  of  the  regular 
course  of  business  transacted,  they  should  be  admitted. — 
Lewis  v.  England,  14  Wyo.  128,  82  P.  869. 

Time   Books  and   Memoranda. 
"Where  an  entry  is  made  by  one  person  in  the  regular 
course  of  business,   recording  an  oral   or  written   report, 


252  DECLARATIONS,  BUSINESS,  ETC. 

made  to  him  by  one  or  more  persons  in  the  regular  course 
of  business,  of  a  transaction  lying  in  the  personal  knowl- 
edge of  the  latter,  there  is  no  objection  to  receiving  that 
entry  under  the  present  exception,  providing  the  practical 
inconvenience  of  producing  on  the  stand  the  numerous 
persons  thus  concerned  would  in  the  particular  case  out- 
weigh the  probable  utility  of  doing  so." — 2  Wigmore  Ev., 
§    1530. 

Books  made  up  from  reports  of  salesmen  in  the  form  of 
written  memoranda,  not  compiled,  or  preserved  in  book 
form  nor  otherwise  available  are  admissible. — Navarre 
v.  Honea,  41  Okl.  480,  139  P.  310;  Weinberg  v.  Garren, 
(Tex.  Civ.  App.),  155  S.  W.  1013;  Cascade  Lumber  Co.  v. 
Aetna  Indemnity  Co.,  56  Wash.  503,  106  P.  158. 
California.  Note  of  time  of  reception  of  message  by  tele- 
graph company  is  evidence  to  prove  time  of  reception. — 
Union  Constr.  Co.  v.  Western  Union  Tel.  Co.,  163  Cal. 
298,  125  P.  242. 

Colorado.  Entries  in  a  vest-pocket  memorandum  book 
and  diary  in  the  handwriting  of  a  deceased  found  among 
his  papers,  no  other  record  of  such  account  being  found, 
nor  any  other  memorandum  showing  business  transac- 
tions, are  admissible  on  behalf  of  his  estate,  under  the 
rules  of  the  common  law,  though  not  admissible  under  the 
provisions  of  the  statute. — Davie  v.  Lloyd,  38  Colo.  250, 
88  P.  446. 

North  Dakota.  Stubs  in  a  pad,  detached  ends  of  which 
were  given  to  defendant  by  employees  of  plaintiff,  were 
admissible  to  show  overpayment  of  wheat  delivered  by 
defendant. — Farmers'  Co-Op.  Elevator  Co.  v.  Medhus,  36 
N.  D.  251,  152  N.  W.  352. 

Texas.  Telephone  call  tickets,  containing  original  entries 
by  the  operator,  shown  to  have  been  properly  kept,  and 
properly  identified,  are  admirable,  unaccompanied  by 
the  testimony  of  the  operator  who  made  the  entries. — 
Southwestern  Tel.  &  Tel.  Co.  v.  Pearson,  (Tex.  Civ.  App.), 
137   S.   W.   733. 

Utah.  Mere  order  slips  or  shop  books,  on  which  simply 
the  orders  for  goods  are  entered  as  the  orders  are  re- 
ceived,  are  not  admissible  to   prove   an  account. — Ogden 


DECLARATIONS,  BUSINESS,  ETC.  253 

Packing  &  Prov.  Co.  v.  Tooele  Meat  &  Storage  Co.,  41 
Utah  92,  124  P.  333. 

While  order  slips  are  not  admissible  as  books  of  orig- 
inal entry,  yet  when  goods  are  put  up  and  checked  off 
from  such  slips,  they  are  admissible. — Ogden  Packing  & 
Prov.  Co.  v.  Tooele  Meat  &  Storage  Co.,  41  Utah  92,  124 
P.   333. 

Wyoming.  Slips  of  paper  on  which  were  written  daily 
charges  by  employees  under  the  direction  of  the  propri- 
etor, who  was  illiterate,  are  admissible. — Lewis  v.  Eng- 
land, 14  Wyo.  128,  82  P.  869. 

Day  Books. 

The  fact  that  charges  were  made  in  the  first  instance 
upon  slips  of  paper,  and  the  same  day  transferred  to  a 
daybook,  does  not  take  away  from  such  daybook  its 
character  as  a  book  of  original  entry. — Plummer  v.  Struby- 
Estabrooke  Merc.  Co.,  23  Colo.  190,  47  P.  294;  Rice  v. 
Hodge,  26  Kan.  164;   Ladd  v.  Sears,  9  Or.  244. 

The  same,  as  to  entries  made  on  a  slate. — Landis  v. 
Turner,   14  Cal.  573. 

Arkansas.  Journal  and  ledger  books  to  which  were  tran- 
scribed each  day  items  from  books  kept'  by  salesmen  who 
are  dead,  may,  when  such  original  books  have  been  de- 
stroyed by  fire,  be  admitted  in  evidence,  if  supported  by 
testimony  of  bookkeepers  who  transcribed  such  items. — 
Stanley  v.  Wilkerson,  63  Ark.  556,  39  S.  W.  1043. 
California.  The  fact  that  the  charges  were  made  on  a 
slate  and  then  transferred  to  the  book  offered  does  not 
destroy  the  character  of  the  book  as  being  of  original 
entry. — Landis  v.  Turner,  14  Cal.  573. 
Colorado.  A  day  book,  to  which  charges  were  copied 
daily  from  slips  of  paper,  is  a  book  of  original  entry. — 
Plummer  v.  Struby-Estabrooke  Merc.  Co.,  23  Colo.  190, 
47  P.  294. 

New  Mexico.     A  cash  book  showing  gross  receipts  is  ad- 
missible, though  including  amounts  paid  on  bills  owed. — 
Di  Palma  v.  Weinman,  16  N.  M.  302,  121  P.  38. 
Ledgers. 

A  ledger  to  which  items  of  account  have  been  trans- 
ferred is  not  admissible  as  a  book  of  original  entry: 


254  DECLARATIONS,  BUSINESS,  ETC. 

California:  San  Francisco  Teaming  Co.  v.  Gray,  11  Cal. 
App.  314,   104  P.  999. 

Colorado:     Jones  v.  Henshall,  3  Colo.  App.  448,  34  P.  254. 
Oregon:     Durkheimer  v.  Heilner,  24  Or.  270,  34  P.  475. 
Texas:     Pohl  v.  Bradford  &  Rowe  Bros.,  (Tex.  Civ.  App.), 
25     S.    W.     984     (where    original    books    of     entry    are 
accessible). 

Nebraska.  A  "loose  leaf"  ledger,  containing  many  orig- 
inal successive  charges  against  defendant  and  others,  is 
admissible. — Armstrong  Clothing  Co.  v.  Boggs,  90  Neb.  499, 
133   N.  W.   1122. 

Bank  Books. 
California.  Pass  books  in  the  handwriting  of  the  bank 
cashier,  and  issued  in  the  usual  course  of  business  are 
admissible  in  a  suit  by  the  administratrix  of  a  depositor 
to  recover  alleged  deposits  of  deceased. — Nicholson  v. 
Randall  Banking  Co.,  130  Cal.  533,  62  P.  930. 
Colorado.  A  daily  balance  book  of  a  bank  is  admissible 
to  show  amounts  to  credit  of  depositors,  though  these  were 
made  up  of  entries  from  daily  deposit  slips. — Zang  v. 
Wyant,  25  Colo.  551,  56  P.  565. 

Kansas.  A  book  containing  a  list  of  depositors  is  ad- 
missible to  show  that  a  person  has  no  account. — State  v. 
McCormick,  57  Kan.  440,  46  P.  777. 

Oklahoma.  A  bank  pass  book  showing  deposits  and  the 
original  checks  drawn  on  the  deposit  are  admissible  to 
show  the  account. — Security  State  Bank  v.  Pussell,  36 
Old.   527,   129  P.  746. 

South  Dakota.  Entries  in  bank  books  are  admissible  to 
show  who  purchased  drafts. — Schmidt  v.  Scanlan,  32  S. 
D.  608,  144  N.  W.  128. 

Washington.  Bank  books  are  admissible  to  show  the 
state  of  an  account. — Chase  &  Baker  Co.  v.  Olmsted, 
(Wash.),  160  P.  952. 

Sundry  Books  and  Records. 
California.  A  nurse's  chart  or  memorandum  of  the  pulse 
and  symptoms  of  testatrix  during  her  last  illness  and  at 
the  time  of  the  execution  of  her  will,  not  evidence  of  the 
facts  stated  therein.— Flint's  Estate,  In  re,  100  Cal.  399, 
34  P.  803;  Everts'  Estate,  In  re,  163  Cal.  449,  125  P.  1058. 
Nebraska.     Books  and   records  of  a  lodge  of  a  fraternal 


DECLARATIONS,  BUSINESS,  ETC.  255 

beneficial  association  are  receivable  in  evidence  against 
the  members  of  the  lodge  and  their  privies. — Union  Pacific 
Lodge  No.  17,  A.  O.  U.  W.  v.  Bankers'  Surety  Co.,  79  Neb. 
801,  113  N.  W.  263. 

South  Dakota.  Books  kept  by  a  postmaster  in  T.  to 
record  "Advices  Received  and  Money  Orders  Drawn,"  are 
admissible  to  show  that  a  money  order  issued  by  a  post- 
office  in  H.  was  cashed  at  T—  State  v.  Hall,  16  S.  D.  6, 
91  N.  W.  325. 

Texas.  The  minutes  of  a  Masonic  lodge,  more  than  thirty 
years  old,  are  admissible  to  show  that  a  certain  person 
was  present  at  the  lodge  as  a  visitor  from  another  lodge. 
—Howard  v.  Russell,  75  Tex.  171,  12  S.  W.  525. 

Completeness  of  Account. 
California.  Summaries  of  the  contents  of  books  covering 
transactions  of  years,  and  millions  of  dollars  in  value, 
made  by  an  expert,  are  admissible  to  show  shortages  and 
defalcations. — San  Pedro  Lumber  Co.  v.  Reynolds,  121 
Cal.  74,  53  P.  410. 

Charges  must  be  specific,  and  lumped  accounts,  such  as 
"Bal.  $357.46,"  are  inadmissible. — Chandler  v.  Robinett,  21 
Cal.  App.  333,  131  P.  981. 

Oregon.  Entries  from  pass  book,  which  were  apparently 
summaries  from  ledger,  excluded. — Harman  v.  Decker,  41 
Or.  587,  68  P.  11. 

Time  of  Making  Entries. 
Arkansas.  A  showing  must  be  made  that  the  entries 
made  in  the  book  offered  were  contemporaneous  with  the 
facts  recorded. — St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Murphy, 
60  Ark.  333,  30  S.  W.  419;  Atkinson  v.  Burt,  65  Ark.  316, 
46   S.  W.   986,   53   S.   W.   404. 

California.  Three  days'  delay  in  transferring  from  slate 
to  permanent  book  is  not  unreasonable. — Landis  v.  Tur- 
ner, 14  Cal.  573. 

A  so-called  "work  book."  whose  items  were  transferred 
from  memoranda  furnished  to  plaintiff's  bookkeeper  by 
oral  statements  of  teamsters  as  to  work  done  during  the 
day,  is  inadmissible. — San  Francisco  Teaming  Co.  v.  Gray. 
11  Cal.  App.  814,  104  P.  999. 

Colorado.  Entries  made  a  week  or  two  after  the  trans- 
action exclude  the  book  from  evidence. — Lovelock  v. 
Gregg,  14  Colo.  53,  23  P.  86. 


256  DECLARATIONS,  BUSNIESS,  ETC. 

Oklahoma.  Entries  made  from  scale  tickets  of  cattle, 
delivered  to  plaintiff's  bookkeeper  by  defendant's  em- 
ployee at  the  stockyards  in  Kansas  City  some  days  after 
the  delivery  of  the  cattle  to  the  agejit  of  defendant  in 
Oklahoma,  are  inadmissible. — Drumm-Plato  Commission 
Co.  v.  Edmisson,  17  Okl.  344,  87  P.  311. 
Washington.  An  account  book  is  inadmissible  where  the 
items  were  apparently  all  made  at  the  same  time. — Golds- 
worthy  v.  Oliver,   (Wash.),  160  P.  4. 

Alterations  and  Mutilations. 
California.  Alterations  and  suspicious  circumstances  ap- 
pearing on  face  of  books  must  be  explained  by  disinter- 
ested testimony. — Caldwell  v.  McDermit,  17  Cal.  465. 
Colorado.  Where  entries  in  a  book  were  made  a  week 
or  more  after  the  transactions,  and  the  book  was  muti- 
lated by  cutting  out  the  leaves  on  which  the  account  was 
kept,  they  are  inadmissible. — Lovelock  v.  Gregg,  10  Colo. 
53,  14  P.  52. 

North  Dakota.  It  is  no  objection  to  the  introduction  of 
a  stub  book  that  it  had  been  mutilated,  where  all  of  the 
original  entries  were  intact  and  only  blanks  and  spoiled 
sheets  were  detached. — Farmers'  Co-Op.  Elevator  Co.  v. 
Medhus,  36  N.  D.  251,  152  N.  W.  352. 
Authentication. 

By  statute  it  must  appear  by  the  oath  of  the  person 
making  them  that  the  entries  are  correct,  and  were  made 
at  or  near  the  time  of  the  transaction,  and  proof  of  such 
person's  handwriting,  in  case  of  his  death  or  absence 
from  the  county. — Missouri,  K.  &  T.  Ry.  Co.  v.  Walker, 
27  Okl.  849,  113  P.  907;  Muscogee  Electric  Traction  Co. 
v.  Mclntire,  37  Okl.  684,  133  P.  213;  Jackson  v.  Moore,  39 
Okl.  234,  134  P.  1114;  St.  Louis  &  S.  F.  R.  Co.  v.  Zick- 
afoose,  39  Okl.  302,   135  P.  406. 

A  book  account  cannot  be  admitted  in  evidence  until 
the  proper  foundation  is  laid.— Watrous  v.  Cunningham, 
71  Cal.  30,  11  P.  811;  Norberg  v.  Plummer,  58  Neb.  410, 
78   N.  W.   708. 

The  rule  excluding  the  testimony  of  parties  as  against 
executor,  etc.,  has  reference  to  matters  at  issue,  and  not 
to  auxiliary  matters  such  as  preliminary  foundation  for 
the    admission    of    parties'    books. — Bagley    v.    Eaton,    10 


DECLARATIONS,  BUSINESS,  ETC.  257 

Cal.  126;  Landis  v.  Turner,  14  Cal.  573;  Roche  v.  Ware,  71 
Cal.  375,  12  P.  284;  Haines  v.  Christie,  28  Colo.  502,  66 
P.  883. 

Arkansas.  Before  allowing  entries  in  a  book  to  be  read, 
there  must  be  a  showing  that  the  book  was  correctly  kept 
and  that  the  entries  were  contemporaneous  with  the  facts 
recorded.— Atkinson  v.  Burt,  65  Ark.  316,  53  S.  W.  404. 

A  gin  book  made  up  from  slips  of  paper  containing 
notations  each  day  by  the  man  who  ran  the  gin,  showing 
the  number  of  bales  ginned  that  day,  is  inadmissible  as 
a  book  of  original  entries,  in  the  absence  of  a  showing 
that  the  deposition  of  such  gin  man  could  not  be  obtained, 
nor  that  of  one  of  the  parties  who  made  entries  in  the 
book,  though  another  person  who  made  some  of  the 
entries  was  a  witness. — Hall  Bros.  Co.  v.  Johnson,  111  Ark. 
593,  164  S.  W.  278. 

California.  The  assignee  of  a  book  account  is  a  compe- 
tent witness  to  prove  loss  of  book  of  original  entry,  as 
preliminary  to  the  introduction  of  secondary  evidence. — 
Caulfield  v.   Sanders,  17  Cal.  569. 

Proof  of  loss  of  book  of  original  entry  was  not  sufficient 
to  let  in  secondary  evidence  of  its  contents,  because  the 
proof  did  not  show  who  had  possession  of  the  book  or 
any  bona  fide  search  for  it. — Caulfield  v.  Sanders,  17 
Cal.  569. 

A  wife  is  not  competent  to  give  the  preliminary  proof 
necessary  to  admit  account  books  of  her  husband,  where 
he  is  within  the  jurisdiction. — Roche  v.  Ware,  71  Cal.  375, 
12  P.  284. 

Plaintiff  suing  an  estate  for  professional  services  ren- 
dered deceased  may  not,  under  the  statute  relating  to 
a  party's  testifying  on  a  claim  against  deceased,  testify 
that  the  items  contained  in  his  account  book  offered  in 
evidence  were  entered  at  or  about  the  time  the  trans- 
actions took  place,  and  that  these  items  were  true  and 
correct,  though  he  may  testify  that  he  kept  such  books 
at  the  time  stated,  and  that  the  book  introduced  in  evi- 
dence was  the  one  kept  by  him;  but  those  who  have 
dealt  and  settled  with  him  from  his  books  of  account 
may  testify  that  he  keeps  fair  and  honest  books,  or  the 
correctness   of   the   entries   may   be   shown   by   the   testi- 


258  DECLARATIONS,  BUSINESS,  ETC. 

mony  of  any  one  who  is  able  of  his  own  knowledge  to 
testify  as  to  the  fact. — Colburn  v.  Parrett,  27  Cal.  App. 
541.    150   P.   786. 

In  order  to  lay  the  foundation  for  the  admission  of 
account  books,  it  must  be  shown  that  the  books  in  ques- 
tion are  books  of  account  kept  in  the  regular  course  of 
business;  that  the  business  is  of  a  character  in  which  it 
is  proper  or  customary  to  keep  such  books;  that  the  en- 
tries were  either  original  entries  or  the  first  permanent 
entries  of  the  transaction;  that  they  were  made  at  the 
time,  or  within  reasonable  proximity  to  the  time,  of  the 
respective  transactions;  and  that  the  persons  making 
them  bad  personal  knowledge  of  the  transactions,  or 
obtained  such  knowledge  from  a  report  regularly  made  to 
him  by  some  other  person  employed  in  the  business  whose 
duty  it  was  to  make  the  same  in  the  regular  course  of 
business.— Chan  Kiu  Sing  v.  Gordon,  171  Cal.  28,  151  P. 
657. 

Colorado.  The  statutory  inhibition  against  a  party  testi- 
fying on  a  claim  against  a  deceased  does  not  extend  to 
the  books  of  accounts  between  the  party  and  deceased. — 
Haines  v.  Christie,  28  Colo.  502,  66  P.  883. 

But  a  physician  in  a  proceeding  to  establish  a  claim 
against  an  estate  for  professional  services  rendered  de- 
cedent is  not  qualified  to  testify  at  all  as  to  such  books. — 
Temple  v.  Magruder,  36  Colo.  502,  85  P.  832. 
Kansas.  Books  containing  depositors  of  a  bank,  and  iden- 
tified by  the  cashier  are  admissible  to  show  that  a  person 
had  no  account,  although  no  other  proof  was  offered  that 
it  was  correct. — State  v.  McCormick,  57  Kan.  440,  46 
P.    777. 

Contemporaneous  entries  made  by  another  in  an  ac- 
count book  at  the  dictation  of  plaintiff,  who  could  neither 
read  nor  write,  when  verified  by  each  as  to  correct  report 
and  entry  of  items  respectively,  are  admissible. — Mery- 
wethers  v.  Youmans,  81  Kan.  309,  105  P.  545. 
Montana.  Books  of  account  showing  amounts  expended 
for  men  and  teams,  handed  to  defendant  by  one  who  made 
them,  and  who  was  not  called  on  to  identify  them,  nor 
his    absence    accounted    for,    are    not    admissible,    in    the 


DECLARATIONS,  BUSINESS,  ETC.  259 

absence  of  proof  that  they  had  been  kept  in  the  usual 
course  of  business,  that  the  entries  had  been  made  con- 
temporaneously with  the  transactions,  or  that  they  had 
been  honestly  and  correctly  kept. — Meredith  v.  Bitter 
Root  Irr.  Co.,  49  Mont.  204,  141  P.  643. 

Nebraska.  Books  which  are  otherwise  unobjectionable 
may  be  introduced  without  calling  the  party  or  clerk  who 
made  them,  where  sufficient  reason  is  given  for  not  pro- 
ducing him.— Volker  v.  First  Nat.  Bank,  26  Neb.  602,  42 
N.   W.   732. 

An  admission  by  a  deceased  that  an  account  kept  in  a 
certain  book  is  correct,  is  not  sufficient  to  warrant  the 
admission  of  a  copy  of  the  account  in  another  book. — 
Fitch  v.  Martin,  74  Neb.  538,  104  N.  W.  1072. 
New  Mexico.  Books  of  account  may  not  be  admitted  in 
evidence  unless  the  one  who  made  them  is  produced  or 
his  absence  accounted  for. — Price  v.  Garland,  3  N.  M. 
505,  6  P.  472. 

Books  of  original  entry  cannot  be  used  as  evidence  until 
the  statute  regulating  their  admission  is  first  complied 
with.— Byerts  v.  Robinson,  9  N.  M.  427,  54  P.  932. 

The  statute  governing  the  introduction  of  books  of 
account  supplemented,  but  did  not  supersede,  the  rule  of 
the  common  law  on  the  subject,  and  the  conditions  Im- 
posed by  it  do  not  apply  to  books  kept  by  a  clerk,  if  such 
clerk  is  produced  as  a  witness  and  testifies  that  he  made 
the  entries  as  bookkeeper  in  the  regular  course  of  busi- 
ness and  substantially  at  the  time  of  the  transactions 
recorded.— McKenzie  v.  King,  14  N.  M.  375,  93  P.  703. 
Oklahoma.  Entries  must  be  verified  by  the  bookkeeper 
who  kept  them,  if  aiive  and  accessible. — First  Nat.  Bldg. 
Co.  v.  Vandenberg.  29  Okl.  583,  119  P.  224. 
Oregon.  The  books  of  a  merchant  are  secondary  evidence 
of  what  is  written  therein,  and  are  admissible  to  prove 
an  account  only  when  demanded  by  necessity,  by  proving 
the  death  or  absence  of  the  one  who  made  them. — Raski 
v.  Wise,  56  Or.  72,  107  P.  984. 

Texas.  Books  used  by  an  agent  in  taking  orders  for  trees 
are  inadmissible,  in  the  absence  of  proof  of  when  he  made 
the  entries  or  that  they  were  correctly  made. — Missouri, 


260  DECLARATIONS,  BUSINESS,  ETC. 

K.  &  T.  Ry.  Co.  v.  Morrison,  42  Tex.  Civ.  App.  598,  94  S. 
W.  173. 

To  authorize  the  introduction  of  book  accounts  in  evi- 
dence, it  must  be  proved  that  the  book  or  books  contain 
original  entries  of  the  transactions  pertinent  to  the  busi- 
ness in  question;  that  the  entries  were  made  in  the  regu- 
lar course  of  business  at  or  near  to  the  time  the  trans- 
actions were  had;  that  the  entries  are  such  as  to  indi- 
cate what  the  charge  is  for;  that  the  entries  were  made 
by  one  who  was  authorized  to  do  so,  and  that  he  did  the 
acts  so  recorded  himself,  or  made  the  record  upon  in- 
formation derived  from  one  who  was  authorized  to  do  so; 
and  that  the  transactions  were  regularly  entered  and  the 
books  correctly  kept.— Stark  v.  Burkitt,  103  Tex.  437,  129 
S.  W.  343. 

When  shop  books  to  which,  as  books  of  original  entry, 
have  been  transferred  entries  on  slips  of  work  done, 
made  by  workmen,  are  not  available,  through  the 
absence  of  the  bookkeeper  who  entered  them,  such  time 
slips  may  not  be  used  to  prove  the  accounts  to  which 
they  relate,  in  the  absence  of  testimony  by  those  who 
made  them  that  the  entries  so  made  were  correct  and 
contemporaneous,  or  by  such  testimony  of  the  foreman, 
if  he  had  also  signed  the  slips. — Randle  v.  Barden,  (Tex. 
Civ.  App.),  164  S.  W.  1063. 

Parties  to  Whom  Available. 
A  party's   account  books   may  be  used  in  evidence  in 
favor  of  his  adversary: 

Colorado:     Plummer  v.   Struby-Estabrooke   Merc.   Co.,   23 
Colo.  190,  47  P.  294;   Kipp  v.  Miller,  47  Colo.  598,  108  P. 
164   (though  not  books  of  original  entry). 
Kansas:     Beyle  v.  Reed,  31  Kan.  113,  1  P.  264. 
Nebraska:     Globe   Sav.   Bank  v.   Nat.  Bank  of   Com.,   64 
Neb.  413,  89  N.  W.  1030. 

Washington.  Books  of  decedent  are  admissible,  though 
made  by  plaintiff  as  his  bookkeeper  and  timekeeper,  suing 
for  services,  where  they  were  made  in  the  usual  course  of 
business  and  decedent  examined  and  checked  the  books, 
and  the  items  shown  were  interspersed  with  others. — 
Robertson  v.  O'Neill,  67  Wash.  121,  120  P.  884. 


DECLARATIONS  AGAINST  INTEREST  261 

NOTE   XVIII. 

(To   Article   27.) 

1  Ph.  Ev.  280-300;  T.  E.  ss.  630-643;  Best,  501;  R.  N.  P. 
63;  and  see  note  to  Price  v.  Lord  Torrington,  2  S.  L.  C.  328. 
[2   Wigmore  Ev.,   §§    1517-1561   and   notes.] 

The  last  case  on  the  subject  is  Massey  v.  Allen,  L.  R.  13 
Ch.    Div.    558. 

Article  28.* 
declarations  against  interest. 

A  declaration  is  deemed  to  be  relevant  if  the 
declarant  had  peculiar  means  of  knowing  the  mat- 
ter stated,  if  he  had  no  interest  to  misrepresent 
it,  and  if  it  was  opposed  to  his  pecuniary  or  pro- 
prietary interest,  (a)  The  whole  of  any  such  dec- 
laration, and  of  any  other  statement  referred  to  in 
it,  is  deemed  to  be  relevant,  although  matters 
may  be  stated  which  were  not  against  the  pecuni- 
ary or  proprietary  interest  of  the  declarant;  but 
statements,  not  referred  to  in,  or  necessary  to  ex- 
plain such  declarations,  are  not  deemed  to  be  rele- 
vant merely  because  they  were  made  at  the  same 
time  or  recorded  in  the  same  place,  (b) 

A  declaration  may  be  against  the  pecuniary  in- 
terest of  the  person  who  makes  it,  if  part  of  it 
charges  him  with  a  liability,  though  other  parts 
of  the  book  or  document  in  which  it  occurs  may 
discharge  him  from  such  liability  in  whole  or  in 
part,  and  [it  seems]  though  there  may  be  no 
proof  other  than  the  statement  itself  either  of 
such  liability  or  of  its  discharge  in  whole  or  in 
part.(c) 

a  These    are    almost    the    exact    words    of    Bayley,    J.,     in 
Gleadow  v.  Atkin,   1  C.  &  M.  423. 
b   Illustrations    fa),    (b)    and    (c). 
c  Illustrations  (d)  and  (e).     [The  admission  of  declarations 


*  See  Note  at  end  of  Article. 


262  DECLARATIONS  AGAINST  INTEREST 

A  statement  made  by  a  declarant  holding  a  lim- 
ited interest  in  any  property  and  opposed  to  such 
interest  is  deemed  to  be  relevant  only  as  against 
those  who  claim  under  him,  and  not  as  against 
the  reversioner,  (d) 

An  endorsement  or  memorandum  of  a  payment 
made  upon  any  promissory  note,  bill  of  exchange, 
or  other  writing,  by  or  on  behalf  of  the  party  to 
whom  such  payment  was  made,  is  not  sufficient 
proof  of  such  payment  to  take  the  case  out  of  the 
operation  of  the  Statutes  of  Limitation ;  (e)  but 
any  such  declaration  made  in  any  other  form  by 
or  by  the  direction  of  the  person  to  whom  the 
payment  was  made  is,  when  such  person  is  dead, 
sufficient  proof  for  the  purpose  af oresaid.  (f ) 

Any  endorsement  or  memorandum  to  the  effect 
above  mentioned  made  upon  any  bond  or  other 
specialty  by  a  deceased  person,  is  regarded  as  a 
declaration  against  the  proprietary  interest  of 
the  declarant  for  the  purpose  above  mentioned, 
if  it  is  shown  to  have  been  made  at  the  time  when 
it  purports  to  have  been  made;(g)  but  it  is  un- 
certain whether  the  date  of  such  endorsement  or 


against  interest  is  an  exception  to  the  hearsay  rule  and  is 
predicated  on  the  fact  of  unavailability  of  evidence  from  an- 
other source,  through  death  or  otherwise.  See  2  Wigmore 
Ev.,    §    1456   et   seq.] 

d"  Illustration  (g);  see  Lord  Campbell's  judgment  in  case 
quoted,   p.    177. 

e  9  Geo.  IV,  c.  14,  s.  3.  [Many  states  have  by  statute  dealt 
with  the  subject  of  creditors'  indorsement  of  payment.  2 
Wigmore  Ev.,   §   1466.] 

f  Bradley  v.  James,  13  C.  B.   822. 

g  3  &  4  Will.  IV,  c.  42,  which  is  the  Statute  of  Limitations 
relating  to  Specialties,  has  no  provision  similar  to  9  Geo. 
IV,  c.  14,  s.  3.  Hence,  in  this  case  the  ordinary  rule  is  unal- 
tered. 


DECLARATIONS  AGAINST  INTEREST  263 

memorandum    may    be  presumed  to  be    correct 
without  independent  evidence,  (h) 

Statements  of  relevant  facts  opposed  to  any 
other  than  the  pecuniary  or  proprietary  interest 
of  the  declarant  are  not  deemed  to  be  relevant 
as  such.(i) 

Illustrations. 

(a)  The  question  Is,  whether  a  person  was  born  on  a  par- 
ticular day. 

An  entry  in  the  book  of  a  deceased  man-midwife  in  these 
words   is  deemed  to  be  relevant. — 1 

"W.    Powden,    Junr.'s    wife, 
Filius  circa  hor.  3  post  merid.  natus  H. 
W.  Fowden,   Junr., 
Ap.    22,   Alius   natus, 
Wife,   £1   6s.   Id., 
Pd.    25    Oct.,    1768." 

(b)  The  question  is,  whether  a  certain  custom  exists  in  a 
part  of  a  parish. 

The  following  entries  in  the  parish  books,  signed  by  de- 
ceased church  wardens,  are  deemed  to  be  relevant: 

"It  is  our  ancient  custom  thus  to  proportion  church-lay. 
The    chapelry    of    Haworth    pay    one-fifth,    &c." 

Followed  by — 

"Received  of  Haworth,  who  this  year  disputed  this  our  an- 
cient custom,  but  after  we  had  sued  him,  paid  it  accordingly 
— £8,  and  £1  for  costs." — 2  [A  credit  by  the  assessors  of  A's 
tax  for  a  given  year  is  evidence  against  the  town.  Boston  v. 
Weymouth,  4  Cush.  (Mass.)  538.  But  the  oral  declarations 
of  a  deceased  collector  that  a  tax  had  been  paid  were  held 
irrelevant,  in  Framingham  v.  Barnard,  1  Met.  (Mass.)  524, 
the  court  observing  that  Iligham  v.  Ridgway  went  no  far- 
ther  than    to   admit    written    declarations    or    entries.] 

h  See  the  question  discussed  in  1  Ph.  Ev.  302-305,  and  T. 
E.  ss.  625-629,  and  see  Article  85.  [The  authorities  in  this 
country  would  seem  to  confirm  the  doctrine  of  Lord  Ellen- 
borough  in  Rose  v.  Bryant,  2  Camp.  321,  that  such  endorse- 
ments cannot  be  admitted  unless  they  are  proved  to  have 
been  written  at  a  time  when  they  must  have  been  against 
the  endorser's  interest.  Roseboom  v.  Billington,  17  Johns. 
(N.  Y.)  182;  ("lap  v.  Ingersol,  2  Fairf.  (Me.)  83;  Coffin  v. 
Bucknam,  3  id.  82;  Beatty  v.  Clement,  12  La.  An.  471;  Adams 
v.  Seitzenger,   1   S.  &   R.   (Pa.)   243.] 

i   Illustration    (h). 

1  Higham  v.  Ridgway,  2  Smith,  L.  C.  318,  7th  ed.  [Thomp- 
son v.  Stevens,  2  Nott  &  McCord   (S.  C),  493.] 

2  Stead   v.    Heaton,    4   T.   R.    669. 


264  DECLARATIONS  AGAINST  INTEREST 

(c)  The  question  is,  whether  a  gate  on  certain  land,  the 
property  of  which   is   in  dispute,  was  repaired  by  A. 

An  account  by  a  deceased  steward,  in  which  he  charges 
A  with  the  expense  of  repairing  the  gate,  is  deemed  to  be 
irrelevant,  though  it  would  have  been  deemed  to  be  relevant 
if  it  had  appeared  that  A  admitted   the   charge. — 3 

(d)  The  question  is,  whether  A  received  rent  for  certain 
land. 

A  deceased  steward's  account,  charging  himself  with  the 
receipt  of  such  rent  for  A,  is  deemed  to  be  relevant,  although 
the  balance  of  the  whole  account  is  in  favor  of  the  stew- 
ard.— 4 

(e)  The  question  is,  whether  certain  repairs  were  done  at 
A's   expense. 

A  bill  for  doing  them,  receipted  by  a  deceased  carpenter, 
is  deemed  to  be  relevant — 5 — irrelevant — 6 — there  being  no 
other  evidence  either  that  the  repairs  were  done  or  that  the 
money  was  paid. 

(f)  The  question  is,  whether  A  (deceased)  gained  a  settle- 
ment in   the   parish   of  B   by   renting  a   tenement. 

A  statement  made  by  A,  while  in  possession  of  a  house, 
that  he  had  paid  rent  for  it,  is  deemed  to  be  relevant,  because 
it  reduces  the  interest  which  would  otherwise  be  inferred 
from  the  fact  of  A's  possession. — 7 

(g)  The  question  is,  whether  there  is  a  right  of  common 
over  a  certain  field. 

A  statement  by  A,  a  deceased  tenant  for  a  term  of  the  land 
in  question,  that  he  had  no  such  right,  is  deemed  to  be  rele- 
vant as  against  his  successors  in  the  term,  but  not  as  against 
the  owner  of  the  field. — 8 

(h)   The  question  is,  whether  A  was  lawfully  married  to  B. 

A  statement  by  a  deceased  clergyman  that  he  performed 
the  marriage  under  circumstances  which  would  have  rendered 
him  liable  to  a  criminal  prosecution,  is  not  deemed  to  be  rele- 
vant as  a  statement  against  interest. — 9 


3  Doe  v.  Beviss,  7  C.  B.  456. 

4  Williams  v.  Graves,  8  C.  &  P.  592. 

5  R.  v.  Heyford,  note  to  Higham  v.  Ridgway,  2  S.  L.  C. 
333,   7th   ed. 

6  Doe  v.  Vowles,  1  Mo.  &  Ro.  261.  In  Taylor  v.  Witham, 
L.  R.  3  Ch.  Div.  605,  Jessel,  M.  R.,  followed  R.  v.  Heyford, 
and  dissented  from  Doe  v.  Vowles.  Hunt  v.  Evans,  49  Tex. 
311. 

7  R.   v.   Exeter,   L.   R.   4   Q.   B.    341. 

8  Papendick  v.   Bridgewater,   5   E.   &  B.   166. 

9  Sussex  Peerage  Case,  11  C.  &  F.  108. 


DECLARATIONS  AGAINST  INTEREST  265 

STATEMENTS    AGAINST    INTEREST. 
In  General. 

Declarations  against  proprietary  interest  are  admissible: 
California:  Harp  v.  Harp,  136  Cal.  421,  69  P.  28  (by 
grantee  in  absolute  deed,  that  it  was  intended  merely  for 
security) ;  Tench  v.  McMeekan,  17  Cal.  App.  14,  118  P. 
476  (by  defendant's  grantor,  that  he  held  the  property 
in  trust). 

Colorado:  Allen  v.  Shires,  47  Colo.  433,  107  P.  1070  (by 
grantor,  gift  of  deed  to  defendant,  and  that  he  was  the 
owner  of  the  premises). 

Nebraska:  Harrison  v.  Harrison,  80  Neb.  103,  113  N.  W. 
1042.  (By  father,  that  a  farm  was  bought  for  the  son  who 
lived  with  him,  and  that  the  son  was  to  have  it  after  his 
death.) 

Texas:  Lord  v.  New  York  Life  Ins.  Co.,  95  Tex.  216,  66 
S.  W.  290  (by  insured,  that  he  had  given  a  certain  policy 
to  his  sister);  Schauer  v.  VonSchauer,  (Tex.  Civ.  App.), 
138  S.  W.  145  (by  a  father,  gift  and  delivery  of  note). 

Declarations  of  a  person  injured,  tending  to  show  that 
the  accident  was  his  own  fault,  are  admissible  as  against 
him  or  his  heirs: 

Kansas:     Walker  v.  Brantner,  59  Kan.  117,  52  P.  80   (en- 
gineer, that  his  injuries  were  due  to  his  negligence). 
Texas:     Smith  v.   International   &   G.   N.   R.  Co.,   34  Tex. 
Civ.  App.  209,  78  S.  W.  556  (a  few  hours  after  being  hurt, 
that  he  was  asleep  on  the  track  when  struck  by  the  train). 

Declarations  against  interest  cannot  be  annulled  or  ex- 
plained away  by  counter  declarations. — Nutter  v.  O'Don- 
nell,  6  Colo.  253;  Harrison  v.  Harrison,  80  Neb.  103,  113 
N.  W.   1042. 

California.  Declarations  of  a  party  to  a  boundary  agree- 
ment, that  the  boundary  was  provisional  and  subject  to 
future  agreement,  are  not  against  interest,  and  are  inad- 
missible.—Thaxter  v.  Inglis,  121  Cal.  593,  54  P.  86. 

Declarations  of  a  decedent  against  his  interest  in  re- 
spect to  his  real  property,  are  admissible.  (That  declar- 
ant held  certain  property  in  trust  for  the  original  grantor.) 
—Tench  v.  McMeekan,  17  Cal.  App.  14,  118  P.  476. 
Colorado.  A  book  in  which  was  entered  fees  collected 
by  the  clerk  of  a  district  court  is  admissible  to  charge  him 


266  DECLARATIONS  AGAINST  INTEREST 

and  his  sureties,  though  it  was  not  a  book  required  by  law 
to  be  kept.— Cooper  v.  People,  28  Colo.  87,  63  P.  314. 

Declarations  of  a  deceased  wife  that  she  had  given  a 
deed  of  certain  property  to  defendant  are  admissible  as 
against  her  surviving  husband. — Allen  v.  Shires,  47  Colo. 
433,  107  P.  1070. 

Kansas.  Declarations  of  a  deceased  that  there  was  no 
contract  fixing  the  amount  which  plaintiff  should  be  paid 
for  the  care  of  decedent,  for  the  value  of  which  he  was 
suing,  are  admissible. — Wright  v.  Stage,  83  Kan.  445,  111 
P.  467. 

Declarations  made  by  a  person  since  deceased  against 
his  pecuniary  or  proprietary  interest,  concerning 
facts  within  his  knowledge,  which  are  material  and  rele- 
vant to  the  issue,  are  admissible,  though  not  a  part  of 
the  res  gestae,  and  the  declarant  was  not  a  party  nor  in 
privity  with  a  party  to  the  action.  (In  action  for  contri- 
bution between  sureties,  the  question  being  whether  a  note 
was  given  in  payment  of  or  in  renewal  of  former  note, 
declaration  of  deceased  owner  of  the  notes,  that  "The 
notes  are  paid,  so  far  as  I  am  concerned,"  admissible.) — 
Mentzer  v.  Burlingame,  85  Kan.  641,   118  P.  698. 

The  admission  of  the  evidence  rests  upon  the  improb- 
ability that  one  will  admit  that  which  it  is  for  his  pecuniary 
interest  to  deny. — Mentzer  v.  Burlingame,  85  Kan.  641,  118 
P.  698. 

Montana.  Declarations  of  a  locator  of  a  mining  claim, 
made  after  patent,  that  plaintiff  was  the  owner  of  a  three- 
eighths  interest,  and  the  fact  that  he  joined  with  plaintiff 
in  the  execution  of  two  leases  thereon,  are  admissible. — 
Delmoe  v.  Long,  35  Mont.  38,  88  P.  778. 
Nebraska.  Declarations  as  to  financial  condition  of  the 
declarant,  when  they  imply  insolvency,  are  against  in- 
terest and  admissible.— Quinby  v.  Ayers,  1  Neb.  (Unof.) 
70,  95  N.  W.  464. 

Letter  by  city  clerk  acknowledging  receipt  of  claim  for 
damages  sent  at  or  near  the  time  he  received  the  claim 
is  admissible  to  show  date  of  filing  claim. — South  Omaha 
v.  Wrzensinski,  66  Neb.  790,  92  N.  W.  1045. 
Texas.     Declarations  of  a  former  owner  after  parting  with 


DECLARATIONS  AGAINST  INTEREST  267 

his  interest  are  inadmissible. — Wilson  v.  Simpson,  68 
Tex.  306,  4  S.  W.   839. 

Declarations  of  one  in  charge  of  personal  property  that 
plaintiff  had  sold  it  to  him  are  not  admissible  to  disprove 
ownership  of  plaintiff  suing  a  third  person  for  conversion 
of  the  goods. — Slocum  v.  Putnam,  (Tex.  Civ.  App.),  25 
S.   W.    52. 

Declarations  of  a  wife  as  to  having  parted  with  her 
community  interest  in  certain  property  are  admissible  as 
against  interest. — Shelburn  v.  Crocklin,  (Tex.  Civ.  App.), 
42  S.  W.  329. 

Declarations  of  stockholders  of  a  school  association  that 
a  lost  deed  to  certain  land  conveyed  to  the  association 
contained  in  the  granting  clause  the  expression  "to  be 
used  for  school  purposes  only,"  are  inadmissible,  as  they 
were  not  holders  of  the  title,  and  there  was  nothing  to 
show  what  their  interest  was,  for  which  only  they  could 
be  bound  in  any  event.— Long  v.  Moore,  19  Tex.  Civ.  App. 
363,  48  S.  W.  43. 

Declarations  of  deceased  that  he  had  given  an  insur- 
ance policy  on  his  life  to  his  sister,  admissible  to  prove 
both  the  gift  and  the  delivery. — Lord  v.  New  York  Life 
Ins.  Co.,  95  Tex.  216,  66  S.  W.  290. 

Recital  in  a  deed  of  the  receipt  of  purchase  money  is 
inadmissible  to  prove  payment  of  the  purchase  money  as 
against  those  claiming  under  a  prior  deed. — Ryle  v. 
Davidson,  102  Tex.  227,  115  S.  W.  28. 

Declarations  of  deceased  as  to  gift  of  note  to  son  ad- 
missible to  prove  delivery. — Schauer  v.  VonSchauer,  (Tex. 
Civ.    App.),    138    S.   W.    145. 

Utah.  Declarations  that  deceased  had  deeded  a  mining 
claim  to  another  and  had  received  pay  for  the  same  is  an 
admission  against  interest. — Scott  v.  Crouch,  24  Utah  377, 
67  P.   1068. 

Declarations,  whether  verbal  or  written,  made  by  a  per- 
son as  to  facts  presumably  within  his  own  knowledge, 
are  an  exception  to  the  hearsay  rule,  and  admissible  in 
evidence,  if  relevant  to  the  matter  of  inquiry,  when  it 
appears  that  the  declarant  is  dead,  that  the  declaration 
was  at  the  time  it  was  made  against  a  pecuniary  or  pro- 
prietary interest  of  the  declarant,  that  it  was  fact  in  rela- 


268  DECLARATIONS  AGAINST  INTEREST 

tion  to  a  matter  of  which  he  was  personally  cognizant, 
and  that  he  had  no  probable  motive  to  falsify  or  misstate 
the  fact  declared,  which  is  generally  shown  by  proof  that 
it  was  made  ante  litem  motam. — Smith  v.  Hanson,  34 
Utah  171,  96  P.  1087. 

A  declaration  of  a  person  since  deceased  is  properly 
admitted,  though  the  declarant  is  in  privity  with  the  party 
litigant  offering  the  declaration,  and  where  it  is  received, 
not  as  an  admission  of  one  identified  in  interest  with  a 
party  litigant,  but  as  direct  evidence  of  the  fact  declared. 
—Smith  v.  Hanson,  34  Utah  171,  96  P.   1087. 

Declarations  of  a  deceased  that  he  had  not  started  a 
suit  against  his  daughter  to  recover  property  conveyed 
to  her,  and  was  not  going  to,  nor  had  he  any  knowledge 
of  any  such  suit  being  started  are  not  against  a  pecuniary 
or  proprietary  interest. — Smith  v.  Hanson,  34  Utah  171, 
96  P.  1087. 

Washington.  Books  kept  by  a  banking  firm  cannot  be 
introduced  to  show  payments  made  on  account  of  certain 
notes,  so  as  to  prevent  the  bar  of  the  statute  of  limita- 
tions from  attaching.— Schlottfeldt  v.  Bull,  18  Wash.  64, 
50  P.  590. 

Indorsements  of  Payment. 
Arkansas.  Indorsement  of  part  payment  made  on  a  note 
must  be  shown  to  have  been  made  before  the  bar  of 
the  statute  attached. — Ruddell  v.  Folsom,  14  Ark.  213. 
Minnesota.  It  must  be  made  to  appear  de  hors  the  in- 
dorsement that  the  indorsement  was  made  at  a  time 
when  it  was  against  the  interest  of  the  holder  to  make  it. 
—Young  v.  Perkins,  29  Minn.  173,  12  N.  W.  515. 

"The  exception  (to  the  Hearsay  rule)  presupposes,  like 
most  of  the  others,  first,  a  necessity  for  resorting  to  hear- 
say, i.  e.  the  death  of  the  declarant,  or  some  other  condition 
rendering  him  unavailable  for  testimony  in  court;  and,  sec- 
ondly, a  Circumstantial  Guarantee  of  Trustworthiness — in 
this  instance,  the  circumstance  that  the  fact  stated,  being 
j:ga  inst  the  declarant's  interest,  is  not  likely  to  have  been 
stated   untruthfully."      2   Wigmore  Ev.,    §    1455. 

NOTE   XIX. 
(To   Article   28.) 

The  best  statement  of  the  law  upon  this  subject  will  be 
found  in   Higham  v.   Ridgway,  an*  the  note  thereto,   2   S.   L.. 


DECLARATION  BY   TESTATORS  269 

C.  318.     See  also   [2  Wigmore  Ev.,   §  1455  et  seq.];  1  Ph.  Ev. 
252-280;  T.  E.  ss.   602-629;   Best,   s.  500;   R.   N.  P.   584. 

A  class  of  cases  exists  which  I  have  not  put  into  the  form 
of  an  article,  partly  because  their  occurrence  since  the  com- 
mutation of  tithes  must  be  very  rare,  and  partly  because  I 
find  a  great  difficulty  in  understanding  the  place  which  the 
rule  established  by  them  ought  to  occupy  in  a  systematic 
statement  of  the  law.  They  are  cases  which  lay  down  the 
rule  that  statements  as  to  the  receipts  of  tithes  and  moduses 
made  by  deceased  rectors  and  other  ecclesiastical  corpora- 
tions sole  are  admissible  in  favor  of  their  successors.  There 
is  no  doubt  as  to  the  rule.  (See,  in  particular,  Short  v.  Lee, 
2  Jac.  &  Wal.  464;  and  Young  v.  Clare  Hall,  17  Q.  B.  537). 
The  difficulty  is  to  see  why  it  was  ever  regarded  as  an  excep- 
tion. It  falls  directly  within  the  principle  stated  in  the  text, 
and  would  appear  to  be  an  obvious  illustration  of  it;  but  in 
many  cases  it  has  been  declared  to  be  anomalous,  inasmuch 
as  it  enables  a  predecessor  in  title  to  make  evidence  in  favor 
of  his  successor.  This  suggests  that  Article  28  ought  to  be 
limited  by  a  proviso  that  a  declaration  against  interest  is  not 
relevant  if  it  was  made  by  a  predecessor  in  title  of  the  per- 
son who  seeks  to  prove  it,  unless  it  is  a  declaration  by  an 
ecclesiastical  corporation  sole,  or  a  member  of  an  eccles- 
iastical corporation  aggregate  (see  Short  v.  Lee),  as  to 
the   receipt  of  a  tithe   or   modus. 

Some  countenance  for  such  a  proviso  may  be  found  In  the 
terms  in  which  Bayley,  J.,  states  the  rule  in  Gleadow  v.  At- 
kin,  and  in  the  circumstance  that  when  it  first  obtained  cur- 
rency the  parties  to  an  action  were  not  competent  witnesses. 
But  the  rule  as  to  the  indorsement  of  notes,  bonds,  &c,  is 
distinctly  opposed  to  such  a  view. 

Article  29. 
declarations  by  testators  as  to  contents  of  will. 

The  declarations  of  a  deceased  testator  as  to 
his  testamentary  intentions,  and  as  to  the  con- 
tents of  his  will,  are  deemed  to  be  relevant 

when  his  will  has  been  lost,  and  when  there  is 
a  question  as  to  what  were  its  contents ;  and 

when  the  question  is  whether  an  existing  will 
is  genuine  or  was  improperly  obtained;  and 

when  the  question  is  whether  any  and  which 
of  more  existing  documents  than  one  constitutes 
his  will. 


270 


DECLARATION  BY   TESTATORS 


In  all  these  cases  it  is  immaterial  whether  the 
declarations  were  made  before  or  after  the  mak- 
ing or  loss  of  the  will,  (a) 

[3   Wigmore  Ev.,    §1734   et  seq.] 

STATEMENTS   OF   TESTATOR. 

Contents  of  Will. 
Kansas.  In  a  proceeding  to  probate  a  will,  statements 
and  conduct  of  the  testator  at  and  about  the  time  of 
making  a  will  which  had  been  lost,  spoliated  or  destroyed 
after  his  death,  as  well  as  his  declarations  as  to  its  con- 
tents and  his  purpose  in  making  bequests  are  admissible. 
— Schnee  v.  Schnee,  61  Kan.  643,  60  P.  738. 
Nebraska.  Testimony  of  contents  of  a  will,  through  knowl- 
edge derived  by  hearing  it  read  by  testator  and  not  by 
inspection,  is  in  effect  only  testimony  as  to  the  testator's 
declarations.— Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843. 
The  declarations  of  a  testator  are  admissible  only  to 
corroborate  other  evidence  as  to  the  contents  of  a  lost 
will.— Clark  v.  Turner,  50  Neb.  290,  69  N.  W.  843;  Williams 
v.  Miles,  68  Neb.  463,  94  N.  W.  705. 

Texas.  Declarations  of  a  testator  are  admissible  to  show 
contents  of  will. — Buchanan  v.  Rollings,  (Tex.  Civ.  App.), 
112   S.  W.   785. 

Destruction   or   Revocation   of  Will. 

Declarations  as  to  the  revocation  of  a  will,  made  long 
after  the  act  was  done,  are  inadmissible. — Glass  v.  Scott, 
14  Colo.  App.  377,  60  P.  186;  Caeman  v.  Van  Harke,  33 
Kan.  333,  6  P.  620;  McElroy  v.  Phink,  97  Tex.  147,  76 
S.  W.  753. 

Declarations  after  the  execution  of  a  will,  if  made 
within  a  reasonable  time  prior  to  death,  are  admissible 
to  show  that  the  will  had  not  been  revoked: 

a  Sugden  v.  St.  Leonards,  L.  R.  1  P.  D.  (C.  A.)  154.  In 
questions  between  the  heir  and  the  legatee  or  devisor  such 
statements  would  probably  be  relevant,  as  admissions  by  a 
privy  in  law,  estate,  or  blood.  Gould  v.  Lakes,  L.  R.  6  P.  D. 
1;  Doe  v.  Palmer,  16  Q.  B.  747.  The  decision  in  this  case  at 
p.  757,  followed  by  Quick  v.  Quick,  3  Sw.  &  Tr.  442  is  over- 
ruled by  Sugden  v.  St.  Leonards. 


DECLARATION   BY    TESTATORS  271 

Oregon:  Miller's  Will,  In  re.  49  Or.  452,  90  P.  1002  (that 
her  will  had  been  deposited  with  a  third  person  and  was 
still  there  within  a  few  days  of  her  death,  and  express- 
ing affection  for  the  devisees). 

Texas:  Buchanan  v.  Rollings.  (Tex.  Civ.  App.),  122  S.  W. 
962. 

Colorado.  Declarations  at  the  time  of  revocation  by  draw- 
ing a  line  through  the  signature  of  testator  are  admis- 
sible, but  not  declarations  long  after  the  act  was  done. — 
Glass  v.  Scott,  14  Colo.  App.  377,  60  P.  186. 

Declarations  of  testatrix  made  at  the  time  of  drawing 
a  line  through  the  signature  of  her  will,  are  admissible 
to  show  the  intent  of  the  act. — Glass  v.  Scott,  14  Colo. 
App.   377,   60   P.   186. 

Declarations  as  to  revocation  of  former  will,  made  at 
the  time  of  making  subsequent  will,  admissible. — Whit- 
ney v.  Hanington,  36  Colo.  407,  85  P.  84. 
Nebraska.  Declarations  of  a  testator,  extending  to  a  short 
time  before  his  death,  that  his  will  had  not  been  revoked, 
are  admissible.— Clark  v.  Turner,  52  Neb.  190,  69  N.  W. 
843. 

Oregon.  Declarations  of  testator  that  he  had  destroyed 
his  will  are  admissible  in  an  action  to  establish,  a  lost  will, 
as  well  as  declarations  that  he  adhered  to  will. — McCoy's 
Will.  In  re.  49  Or.   579.  90  P.   1105. 

Texas.  Declarations  of  a  testator  are  receivable  to 
strengthen  the  proof  of  the  execution  of  the  will  and  to 
rebut  the  presumption  of  revocation. — Tynan  v.  Paschal, 
27  Tex.   286,   300. 

Verbal  declarations  to  prove  revocation  are  admissible, 
when  made  shortly  before  testator's  death.  (That  she 
had  sent  for  and  gotten  her  will,  and  had  destroyed  it.)  — 
UcKlroy  v.   Phink,  97  Tex.   147.  76  S.   W.   753. 

Showing  Undue  Influence. 
California.  Declarations  of  testatrix  after  the  execution 
of  her  will,  fxpr^ssing  her  dissatisfaction  with  the  will 
and  a  desire  to  execute  a  new  one.  are  inadmissible  to 
show  undue  influence. — Calkins.  In  re,  112  Cal.  296,  44  P. 
577. 

Statements  by  a  testatrix  several  months  after  the 
execution  of  a   will  that  she  did  not  make  a  will  and  did 


272  DECLARATION   BY   TESTATORS 

not  know  what  was  in  the  will,  that  she  was  sorry  her 
daughter  Lizzie  was  not  in  the  will  the  same  as  the  others 
and  that  she  did  not  feel  safe  if  she  should  make  another 
will,  are  inadmissible  to  show  undue  influence. — Kauf- 
man's Estate,   In  re,   117  Cal.  288,  49  P.  192. 

Declarations  of  a  testator  regarding  the  statements  or 
acts  of  those  by  whose  influence  it  was  alleged  he  was  in- 
duced to  make  the  will,  are  inadmissible  on  the  question 
of  undue  influence,  the  soundness  of  testator's  mind  not 
being  in  question. — Donovan's  Estate,  In  re,  140  Cal.  390, 
73  P.   1081. 

Declarations,  when  forming  no  part  of  res  gestae  of 
testamentary  act,  are  inadmissible  for  or  against  the 
genuineness  or  validity  of  the  instrument,  except  as  to 
determination  of  sanity  or  undue  influence. — Thomas'  Es- 
tate, In  re,  155  Cal.  488,  101  P.  798. 

Idaho.  The  declarations  of  a  testator,  made  after  the 
execution  of  a  will,  showing  his  dissatisfaction  therewith 
and  his  intention  to  execute  a  new  will,  are  not  admis- 
sible to  show  that  the  will  was  executed  under  duress  or 
undue  influence. — Gwin  v.  Gwin,  5  Ida.  271,  48  P.  295. 
Kansas.  While  declarations  of  a  testator  are  not  admis- 
sible as  mere  impeachment  of  the  validity  of  the  will, 
they  are  admissible  as  evidence  of  the  testator's  state  of 
mind;  and  where  the  question  is  one  of  undue  influence 
declarations  of  testator  before  and  after  the  execution  of 
the  will,  showing  unfriendly  feeling  and  relations  with 
one  of  the  principal  devisees,  are  admissible. — Mooney  v. 
Olsen,   22  Kan.   78. 

Nebraska.  Statements  of  a  testator  made  after  the  execu- 
tion of  the  will  are  not  admissible  to  show  coercion  or 
undue  influence  at  the  time  of  executing  the  will,  and 
such  statements  can  only  be  used  for  the  purpose  of 
showing  his  state  of  mind  after  the  making  of  the  will, 
and,  if  there  was  independent  proof  of  coercion,  to  show 
that  the  action  of  making  the  will  was  influenced  by  such 
coercion. — Davidson  v.  Davidson,  2  Neb.  (Unof.)  90,  96 
N.   W.    409. 

Texas.  Declarations  of  a  testator  as  to  circumstances 
inducing  or  attending  the  execution  of  a  will  are  inad- 
missible.— Kennedy  v.  Upshaw,  64  Tex.  411,  417. 


DECLARATION   BY   TESTATORS  273 

Statements  made  after  a  will  wa.s  executed  expressive 
of  the  dissatisfaction  of  the  testatrix  with  it  are  admis- 
sible, not  to  prove  actual  fraud  or  improper  influence 
connected  with  its  execution,  but  to  establish  the  influ- 
ence and  effect  of  the  external  acts,  if  any,  upon  the  mind 
of  the  testatrix  herself. — Campbell  v.  Barrera,  (Tex.  Civ. 
App.),  32  S.  W.  724. 

EXISTENCE  OR  NON-EXISTENCE  OF  WILL. 
Arkansas.  Declarations  of  deceased  as  to  not  having 
made  a  will,  uttered  about  a  year  after  the  date  of  an 
instrument  claimed  to  be  a  will,  are  not  competent  to 
prove  the  will  a  forgery. — Leslie  v.  McMurtry,  60  Ark. 
301,  30  S.  W.  33. 

Nebraska.  Declarations  of  a  testator  alone  are  sufficient 
to  prove  the  existence  of  a  lost  will. — Williams  v.  Miles,  68 
Neb.   463,   94   N.   W.   705. 

Texas.  The  conduct  and  declarations  of  a  testator  be- 
fore and  after  the  making  of  a  will,  are  admissible,  where 
the  issue  is  upon  the  sanity  of  the  testator,  but  not  where 
it  is  upon  the  execution  of  the  instrument.  (Three  days 
after  date  of  an  alleged  codicil,  that  he  had  made  no 
change  in  the  disposition  of  his  property  and  intended 
making  none,  inadmissible). — Kennedy  v.  Upshaw,  64 
Tex.  411,  417. 

Declarations  at  time  of  executing  a  will  that  he  "already 
had  Adams  and  Henry  fixed,"  are  not  admissible  to  estab- 
lish the  execution  of  a  prior  will. — Maris  v.  Adams,  (Tex. 
Civ.  App.),   166   S.   W.   475. 

TESTATOR'S   INTENTION. 
California.     Declarations    of    testator,    showing    his    affec- 
tions, are   admissible  if  made  within   reasonable   time   of 
the   execution    of   his    will. — McDevitt's    Estate,    In    re,    95 
Cal.  11,  30  P.  101. 

Declarations  of  a  testator  that  he  intended  to  remem- 
ber a  certain  Mrs.  H.  for  the  kindness  she  had  shown 
him  are  not  admissible  in  a  prosecution  for  perjury  of  one 
of  the  attesting  witnesses  of  a  forged  will  in  favor  of  said 
Mrs.  H.— People  v.  Rodley,  131  Cal.  240,  63  P.  351. 
Texas.  When  the  issue  is  want  of  capacity  of  the  testa- 
tor to  make  a  will,  it  is  permissible  to  prove  his  or  her 


274  DECLARATIONS  AS  TO  PUBLIC 

declarations  made  antecedent  to  the  time  of  making  the 
will,  either  showing  an  intention  to  make  such  disposition 
of  the  property  as  was  finally  made,  or  to  prove  the  con- 
trary. (That  testatrix  intended  to  leave  all  her  property 
to  her  husband.)— Brown  v.  Mitchell,  88  Tex.  350,  31 
S.  W.   621. 

Article  30.* 
declarations  as  to  public  and  general  rights. 

Declarations  are  deemed  to  be  relevant  (sub- 
ject to  the  third  condition  mentioned  in  the  next 
article)  when  they  relate  to  the  existence  of  any 
public  or  general  right  or  custom,  or  matter  of 
public  or  general  interest.  But  declarations  as 
to  particular  facts  from  which  the  existence  of 
any  such  public  or  general  right  or  custom  or  mat- 
ter of  public  or  general  interest  may  be  inferred, 
are  deemed  to  be  irrelevant. 

A  right  is  public  if  it  is  common  to  all  Her 
Majesty's  subjects  (or  all  the  citizens  of  a  State), 
and  declarations  as  to  public  rights  are  relevant, 
whoever  made  them. 

A  right  or  custom  is  general  if  it  is  common 
to  any  considerable  number  of  persons,  as  the 
inhabitants  of  a  parish,  or  the  tenants  of  a  manor. 

Declarations  as  to  general  rights  are  deemed  to 
be  relevant  only  when  they  were  made  by  persons 
who  are  shown,  to  the  satisfaction  of  the  judge, 
or  who  appear  from  the  circumstances  of  their 
statement,  to  have  had  competent  means  of 
knowledge,  (a) 

Such  declarations  may  be  made  in  any  form 
and  manner. 


*  See  Note  at  end  of  Article. 


DECLARATIONS  AS  TO  PUBLIC  275 

a  ["The  principle  that  the  witness  must  appear  to  have 
been  in  a  position  to  obtain  adequate  knowledge  finds  an  ap- 
plication to  the  present  Exception  (to  the  Hearsay  rule). 
The  reputation,  to  be  admissible,  must  obviously  have  been 
formed  among-  a  class  of  persons  who  were  in  a  position  to 
have  sound  sources  of  information."  2  Wigmore  Ev.,  § 
1591.] 

Illustrations. 

(a)  The  question  is,  whether  a  road  is  public. 

A  statement  by  A  (deceased)  that  it  is  public  is  deemed 
to  be  relevant. — 1 

A  statement  by  A  (deceased)  that  he  planted  a  willow  (still 
standing)  to  show  where  the  boundary  of  the  road  had  been 
when  he  was  a  boy  is  deemed  to  be  irrelevant. — 2 

(b)  The  following  are  instances  of  the  manner  in  which 
declarations  as  to  matters  of  public  and  general  interest  may 
be  made:     They  may  be  made  in 

Maps  prepared  by  or  by  the  direction  of  persons  interested 
in    the    matter. — 3 

Copies    of    Court    Rolls. — 4 

Deeds   and   leases   between    private   persons. — 5 

Verdicts,  judgments,  decrees  and  orders  of  courts,  and  sim- 
ilar   bodies — 6 — if    final. — 7 

DECLARATIONS   AS   TO    PUBLIC   AND   GENERAL 
RIGHTS. 

In   General. 

"What  is  offered  must  be  in  effect  a  reputation,  not  the 
mere  assertion  of  an  individual.  This  follows  from  the  nature 
of  the  foregoing  principle  (of  trustworthiness  through  ob- 
servation and  discussion  by  the  whole  community),  and  is 
the  thought  running  through  the  language  of  all  the  judges." 
2   Wigmore   Ev.,   8    1584. 

California.  "We  think  the  terms  ('facts  of  general 
notoriety  and  interest')  stand  for  facts  of  a  public  nature, 
either  at  home  or  abroad,  not  existing  in  the  memory  of 

1  Crease  v.   Barrett,  per  Parke,  B.,  1  C.  M.  &  R.  929. 

2  K.   v.   Bliss,   7    A.   &    E3.    550. 

3  Implied  in  Hammond  v.  Bradstreet,  10  Ex.  390,  and  Pipe 
v.  Fulcher,  1  10.  ft  E.  111.  In  each  of  these  cases  the  map 
was  rejected  as  not   properly  qualified. 

4  Crease  v.   Barrett,   i   < '.   M.  &    u    928. 

5  Plaxton  v.  Dare,  10  B.  &  C.  17. 

6  Duke  ot  Newcastle  v.  Broxtowe,   l  B.  &  Ad.  -73. 

7  Pirn  v.   Curell,   t;  Mi  &  W.   234,  266. 


276  DECLARATIONS  AS  TO  PUBLIC 

men  as  contradistinguis)  'd  from  facts  of  a  private  nature 
existing  within  the  knowledge  of  living  men,  and  as  to 
which  they  may  be  examined  as  witnesses." — Gallagher 
v.  Market  Street  R.  Co.,  67  Cal.  15,  6  P.  869. 

An  old  map,  generally  well  known  and  accepted  as  such, 
is  admissible  in  connection  with  certain  deeds  introduced, 
in  which  reference  was  made  to  the  said  map  for  descrip- 
tion.—Taylor  v.  McGonigle,  120  Cal.  123,  52  P.  159. 

A  public  highway  cannot  be  proved  by  showing  that  it 
was  generally  reputed  to  be  a  highway. — Shepherd  v. 
Turner,  129  Cal.  530,  62  P.  106. 

The  use  and  extent  of  use  made  of  a  road  may  be  ad- 
missible to  show  that  it  had  become  a  public  highway  by 
dedication.— Shepherd  v.  Turner,  129  Cal.  530,  62  P.  106. 
Massachusetts.  Declarations  as  to  "public  and  general 
rights"  must  be  declarations  of  the  public  or  general 
rights,  and  not  of  the  particular  exercise  of  it. — Inhabit- 
ants of  Enfield  v.  Woods,  212  Mass.  547,  99  N.  E.  331. 

On  an  issue  whether  a  town  acquired  title  to  a  tract 
of  land  for  a  common  by  adverse  possession  which  began 
with  a  parol  gift,  a  witness  is  allowed  to  testify  that  he 
had  heard  his  grandmother  and  the  rest  of  the  "old  peo- 
ple" state  that  a  certain  person  gave  the  land  to  the 
town  for  a  common. — Inhabitants  of  Enfield  v.  Woods, 
212  Mass.  547,  99  N.  E.  331. 

Declarations    or    Reputation    as   to    Boundaries. 

When  boundaries  are  public  ones  they  may  in  cases 
of  necessity  be  established  by  hearsay  and  reputation. — 
Muller  v.  Southern  Pac.  Ry.  Co.,  83  Cal.  240,  23  P.  266; 
Stetson  v.  Freeman,  35  Kan.  523,  11  P.  431. 

Reputation  must  exist  before  controversy  arises. — Id. 
California.  Reputation  as  to  the  boundaries  of  parishes 
and  towns  is  only  received  where  such  boundary  is  of 
remote  antiquity. — Vanderslice  v.  Hanks,  3  Cal.  27,  45. 

Where  the  boundary  line  of  a  county  can  be  proved  by 
reputation,  the  proof  must  be  confined  to  the  declarations 
of  persons  having  knowledge,  and  who  are  since  de- 
ceased.— Lay  v.   Neville,   25   Cal.    546. 

The  boundary  line  of  a  county  cannot  be  proved  by  evi- 
dence showing  where  it  is  reputed  to  run,  among  persons 
living  near  the  line,  except  where  it  is  an  ancient  boun- 


DECLARATIONS  AS  TO  PUBLIC  277 

dary  and  depends  upon  prescription,  or  cannot  be  proved 
except  by  parol. — Lay  v.   Neville,   25   Cal.   545. 

The  location  of  the  boundary  line  between  two  counties 
is  a  matter  of  common  interest,  and  may  be  proved  by 
reputation. — People  v.   Velarde,    59   Cal.   457. 

Reputation  is  admissible  to  establish  a  boundary  line 
of  general  or  public  interest. — Muller  v.  Southern  Pac. 
Ry.  Co.,  83  Cal.  240,  23  P.  265. 

Florida.  Reputation  or  hearsay,  taken  in  connection  with 
other  evidence,  is  entitled  to  respect  in  cases  of  boundary 
when  the  lapse  of  time  is  so  great  as  to  render  it  difficult, 
if  not  impossible,  to  prove  the  boundary  by  the  existence 
of  the  primitive  landmarks  or  other  evidence  than  that  of 
hearsay. — Daggett  v.  Willey,  6  Fla.  511. 
Kansas.  Reputation  to  prove  public  boundaries  admis- 
sible.—Stetson  v.  Freeman,  35  Kan.  523,  11  P.  431. 
Oregon.  Reputation  admissible  to  prove  ancient  boun- 
dary.— Goddard  v.  Parker,  10  Or.  102. 

Reputation  as  to  boundaries  must  have  reference  to  a 
time  ante  litem  motam. — Stroud  v.  Springfield,  28  Tex. 
649. 

Texas.  When  the  location  of  a  county  boundary  is  a  ma- 
terial fact  to  be  determined,  evidence  of  general  reputation 
is  admissible  in  criminal  as  well  as  in  civil  cases. — Cox  v. 
State,  41  Tex.  4. 

Evidence  of  general  reputation  as  to  boundary  lines  of 
a  survey  is  admissible,  but  the  reputation  must  have  been 
formed  before  controversy  begun. — Clark  v.  Hills,  67  Tex. 
152,  2  S.  W.  356. 

Evidence  as  to  general  reputation  as  to  boundary  lines 
of  a  survey  are  admissible  where  the  boundaries  are 
ancient  and  their  locality  seems  to  have  been  a  matter 
of  sufficient  interest  in  the  neighborhood  to  have  been  the 
subject  of  observation  and  conversation  among  the  people. 
—Clark  v.  Hills,  67  Tex.  152,  2  S.  W.  356. 

Reputation  as  to  corners  of  a  survey  admissible. — Mat- 
thews v.  Thatcher,  33  Tex.  Civ.  App.  133,  76  S.  W.  61. 

Common  repute  as  to  the  location  of  any  line  of  a  sur- 
vey is  admissible  in  aid  of  the  search  for  the  original 
corners.  (Testimony  that  there  was  pointed  out  to  a  wit- 
ness a  certain  stake  as  corner,  and  such  had  at  that  time 


278  DECLARATIONS  AS  TO  PUBLIC 

'and  since  been  reputed  to  be  corner  of  the  survey.) — 
Matthews  v.  Thatcher,  33  Tex.  Civ.  App.  133,  76  S.  W.  61. 

Evidence  of  the  general  reputation  and  recognition  of 
the  location  of  a  boundary  line  of  a  survey  is  admissible. 
— Goodson  v.  Fitzgerald,  40  Tex.  Civ.  App.  619,  90  S.  W. 
898. 

Declarations  of  a  deceased  surveyor  as  to  the  location 
of  a  corner  of  a  survey,  admissible. — Simpson  v.  De 
Ramirez,  50  Tex.  Civ.  App.  25,  110  S.  W.  149. 

Reputation  beginning  forty  years  after  fines  and  corners 
were  located,  and  which  appears  to  have  originated  from 
a  survey  made  by  a  surveyor  who  is  not  shown  to  have 
had  any  knowledge  as  to  the  location  of  the  survey,  is 
inadmissible. — State  v.  Dayton  Lumber  Co.,  (Tex.  Civ. 
App.),   159   S.  W.   391. 

Washington.     Hearsay    evidence    is  admissible  both  upon 
questions  of  boundary  affecting  public  rights  and  also  in 
the   case   of   disputes   as   to   boundaries   between   private 
owners. — Inmon  v.  Pearson,  47  Wash.  402,  92  P.  279. 
REPUTATION    OR    DECLARATIONS    AS    TO    PRIVATE 

BOUNDARIES. 
California.  According  to  the  authorities  in  the  majority 
of  the  American  states,  it  is  not  necessary  that  the 
hearsay,  to  entitle  it  to  be  received,  should  be  general, 
or  relate  to  boundaries  in  which  the  public  or  numerous 
persons  are  interested.  It  may  be  limited  to  particular 
facts  embracing  the  declarations  of  a  single  individual, 
provided  such  individual  had,  from  his  situation,  the 
means  of  knowledge  and  was  disinterested  in  the  matter, 
and  may  relate  only  to  the  boundary  of  a  private  estate. 
(Declarations  of  a  deceased  surveyor  allowed  as  to  the 
boundary  line  of  a  grant.) — Morton  v.  Folger,  15  Cal. 
275,   279. 

Texas.  Declarations  of  deceased  parties  as  to  private 
boundary  lines,  admissible. — Stroud  v.  Springfield,  28  Tex. 
666;  Hurt  v.  Evans,  49  Tex.  316;  Tucker  v.  Smith,  68 
Tex.  478,  3  S.  W.  671.. 

Common  reputation  or  understanding  in  the  neighbor- 
hood is  admissible  with  regard  to  ancient  boundaries,  but 
it  must  be  general  and  concurrent,  and  must  have  been 
formed  before  the  commencement  of  tbe  controversy  in 


DECLARATIONS  AS  TO  PUBLIC  279 

which   it  is  used   as   evidence. — Stroud   v.   Springfield,   28 
Tex.  666. 

Reputation  admissible  to  show  boundaries  of  private 
land.— Clark  v.  Hills.  67  Tex.  152,  2  S.  W.  356. 

The  declaration  of  one  in  possession  when  pointing  out 
his  boundaries  to  which  he  claimed,  at  a  time  when  there 
was  nothing  making  it  to  his  interest  to  misrepresent  the 
facts,  is  admissible,  the  declarant  being  dead. — Goodson  v. 
Fitzgerald,  40  Tex.  Civ.  App.  619.  90  S.  W.  898. 

Declarations  of  a  remote  vendor  at  the  time  of  his  con- 
veyance as  to  the  boundary  in  dispute,  admissible. — 
Bollinger  v.  McMinn.  47  Tex.  Civ.  App.  89,  104  S.  W.  1079. 

Admissible  to  prove  location  of  private  boundaries. — 
Thacker  v.  Wilson,  (Tex.  Civ.  App.),  122  S.  W.  938. 

Recitals  in  a  deed  sixty  years  old  of  prior  conveyances 
which  would  show  a  good  title  in  the  grantor  of  the  later 
deed  are  admissible  on  behalf  of  defendants  claiming 
under  such  grantor  when  the  records  where  the  early 
deeds  would  likely  be  found  had  been  burned  and  no  copies 
could  be  found. — Houston  Oil  Co.  v.  Drumwright,  (Tex. 
Civ.  App.),  162  S.  W.  1011. 

Washington.  In  the  United  States  hearsay  evidence  is  ad- 
missible both  upon  questions  of  boundary  affecting  public 
rights  and  also  in  the  case  of  disputes  as  to  boundaries 
between  private  landowners. — Inmon  v.  Pearson.  47  Wash. 
402,  92  P.  279. 
DECLARATIONS    OR    REPUTATION    AS   TO    TITLE    OR 

OWNERSHIP. 
Arkansas.     Reputation    as    to    ownership    inadmissible. — 
Taylor  v.  McClintock,  87  Ark.  243,  112  S.  W.  405. 

Declarations  as  to  title  are  not  competent. — Waldroop 
v.   Ruddell,   96  Ark.   171,   131  S.  <W.   670. 

Testimony  of  witnesses  that  they  understood  plaintiff's 
mother  owned  the  land  in  controversy,  was  inadmissible. 
—Waldroop  v.  Ruddell,  96  Ark.  171.  131  S.  W.  670. 
California.  Ancient  reputation  thai  a  city  owned  and  con- 
trolled certain  water,  admitted. — Vernon  Irrig.  Co.  v.  Los 
Angeles,  106  Cal.  237.  39  P.  762. 

Declarations  made  by  a  wife  in  her  will  and  without  the 
knowledge  of  her  husband  are  not  admissible  to  prove  that 
the  property  disposed  of  thereby  was  separate  property  of 


280  DECLARATIONS  AS  TO  PUBLIC 

the  wife. — Rowe  v.  Hibernia  Savings  &  Loan  Soc,  134 
Cal.  403,  66  P.  569. 

That  certain  persons  were  known  by  common  report  to 
be  trustees  to  convey  certain  pueblo  lands  may  be  shown. 
—City  of  Monterey  v.  Jacks,  139  Cal.  542,  73  P.  436. 
Montana.  That  a  wife  was  generally  reputed  in  the  neigh- 
borhood to  be  the  owner  of  sheep  claimed  to  have  been 
transferred  to  her  by  the  husband  in  fraud  of  creditors 
is  irrelevant.— Finch  v.  Kent,  24  Mont.  268,  61  P.  653. 

Reputation  as  to  the  ownership  of  personal  property  is 
inadmissible.— Chestnut  v.  Sales,  44  Mont.  534,  121  P.  481. 
Texas.  Evidence  to  show  that  a  person  was  reputed  in 
the  neighborhood  to  be  the  owner  of  certain  land  for  a 
considerable  period  is  admissible. — Rice  v.  Melott,  32  Tex. 
Civ.  App.  426,  74  S.  W.  935. 

Washington.  When  title  is  claimed  by  adverse  possession 
evidence  that  the  premises  were  generally  reputed  to  be- 
long to  the  party  so  claiming  is  relevant. — McAuliff  v. 
Parker,  10  Wash.  141,  38  P.  744. 

REPUTATION  AS  TO  SUNDRY  MATTERS. 

Pedigree,  age,  or  the  relationship  of  one  person  to  an- 
other, cannot  be  proved  by  general  reputation  or  by  what 
the  neighbors  or  acquaintances  thought  or  said  upon  the 
subject.— Heaton's  Estate,  In  re,  135  Cal.  385,  67  P.  321; 
Freeman  v.  First  Nat.  Bank,  44  Okl.  146,  143  P.  1165;  Gib- 
son v.  Dickson,  (Tex.  Civ.  App.),  178  S.  W.  44. 
California.  The  residence  of  a  person  at  a  particular  time 
cannot  be  proved  by  evidence  of  common  report. — Pfister 
v.  Dascey,  68  Cal.  572,  10  P.  117. 

Colorado.  Former  convictions  for  keeping  a  lewd  and 
disorderly  house  are  admissible,  on  a  trial  of  a  similar 
charge,  to  prove  reputation. — Howard  v.  People,  27  Colo. 
396,  61  P.  595. 

Idaho.  Prosecution  for  bigamy.  Evidence  of  general  re- 
pute of  guilt  of  defendant  not  relevant. — United  States  v. 
Langford,  2  Idaho  561,  21  P.  409. 

Oregon.  A  neighbor  may  testify  by  knowledge  of  common 
reputation,  that  a  certain  person  was  the  illegitimate  child 
of  another.— State  v.  McDonald,  55  Or.  419,  106  P.  444. 

Common  rumor,  cards  and  newspaper  items,  are  inad' 


DECLARATIONS  AS  TO  PUBLIC  281 

missible  to  show  a  partnership. — Gettins  v.  Hennessey, 
60  Or.  566,  120  P.  369. 

Texas.  An  acquaintance  of  a  family  consisting  of  a 
mother,  son  and  daughter  may  testify  as  to  common 
reputation  in  the  community  that  the  husband  was  dead. — 
Wall  v.  Lubbock,  52  Tex.  Civ.  App.  405,  118  S.  W.  886. 

Custom  must  be  shown  by  direct  testimony,  and  not 
by  opinion  or  reputation. — Standard  Paint  Co.  v.  San 
Antonio  Hardware  Co.,    (Tex.  Civ.  App.),   136  S.  W.  1150. 

Death  may  be  proved  by  hearsay  after  the  lapse  of 
long  time. — McDoel  v.  Jordan,  (Tex.  Civ.  App.),  151  S. 
W.   1178. 

HISTORICAL    EVENTS. 

[By  statute,  in  several  jurisdictions  "historical  works, 
books  of  science  or  art  and  published  maps  or  charts  when 
made  by  persons  indifferent  between  the  parties  are  prima 
facie  evidence  of  facts  of  general  notoriety  and  interest." 
See  2  Wigmore  Ev.,  §  1597.] 

ANCIENT  DOCUMENTS. 
New  Mexico.  Where  the  alleged  ancient  original  is  lost 
and  an  ancient  purported  copy  is  offered,  made  by  a 
private  hand,  and  the  purported  maker  is  unknown  or 
deceased,  and  the  fact  is  established  that  it  has  been  in 
existence  for  more  than  thirty  years,  and  the  copy  comes 
free  from  suspicion,  it  may  be  received  in  evidence  under 
the  ancient  document  rule. — Union  Land  &  Grazing  Co. 
v.  Arce,  21  N.  M.  115,  152  P.  1143. 

Texas.  Recitals  in  ancient  deeds  are  admissible  to  show 
a  sale  of  corporate  stock  without  showing  possession  un- 
der the  transfer  recited  or  the  assertion  of  a  claim  of 
title  thereunder  or  enjoyment  of  the  property  transferred. 
— Condit  v.  Galveston  City  Co.,  (Tex.  Civ.  App.),  186  S. 
W.  395. 

NOTE    XX. 
(To   Article   30.) 

Upon  this  subject,  besides  the  authorities  in  the  text,  see 
[2  Wigmore  Ev.,  §  1580  et  seq.]  1  Ph.  Ev.  169-197;  T.  E.  ss. 
543-569;  Best,  s.  497;  R.  N.  P.  50-54  (the  latest  collection  of 
cases). 

A  great  number  of  cases  have  been  decided  as  to  the 
particular  documents,  &c,  which  fall  within  the  rule  given 
in  the  text.  They  are  collected  in  the  works  referred  to 
above,  but  they  appear  to  me  merely  to  illustrate  one  or  other 
of  the  branches  of  the  rule,  and  not  to  extend  or  vary  it.     An 


282  DECLARATIONS  AS  TO  PEDIGREE 

award,  e.  g.,  is  not  within  the  last  branch  of  illustration  (b), 
because  it  "is  but  the  opinion  of  the  arbitrator,  not  upon  his 
own  knowledge"  (Evans  v.  Rees,  10  A.  &  E.  155);  but  the 
detailed  application  of  such  a  rule  as  this  is  better  learnt  by 
experience,  applied  to  a  firm  grasp  of  principle,  than  by  an 
attempt    to   recollect   innumerable   cases. 

The  case  of  Weeks  v.  Sparke  is  remarkable  for  the  light 
it  throws  on  the  history  of  the  Law  of  Evidence.  It  was  de- 
cided in  1813,  and  contains  inter  alia  the  following  curious 
remarks  by  Lord  Ellenborough:  "It  is  stated  to  be  the  habit 
and  practice  of  different  circuits  to  admit  this  species  of  evi- 
dence upon  such  a  question  as  the  present.  That  certainly 
cannot  make  the  law,  but  it  shows  at  least,  from  the  estab- 
lished practice  of  a  large  branch  of  the  profession,  and  of 
the  judges  who  have  presided  at  various  times  on  those  cir- 
cuits, what  has  been  the  prevailing  opinion  upon  this  sub- 
ject amongst  so  large  a  class  of  persons  interested  in  the 
due  administration  of  the  law.  It  is  stated  to  have  been  the 
practice  both  of  the  Northern  and  Western  Circuits.  My 
learned  predecessor,  Lord  Kenyon,  certainly  held  a  different 
opinion,  the  practice  of  the  Oxford  Circuit,  of  which  he  was 
a  member,  being  different."  So  in  the  Berkeley  Peerage  Case, 
Lord  Eldon  said,  "When  it  was  proposed  to  read  this  deposi- 
tion as  a  declaration,  the  Attorney-General  (Sir  Vicary 
Gibbs)  flatly  objected  to  it.  He  spoke  quite  right  as  a  West- 
ern Circuiteer,  of  what  he  had  often  heard  laid  down  in  the 
West,  and  never  heard  doubted"  (4  Cam.  419,  A.  D.  1811). 
This  shows  how  very  modern  much  of  the  Law  of  Evidence 
is.  LeBlanc,  J.,  in  Weeks  s.  Sparke,  says,  that  a  foundation 
must  be  laid  for  evidence  of  this  sort  "by  acts  of  enjoyment 
within  living  memory."  This  seems  superfluous,  as  no  jury 
would  ever  find  that  a  public  right  of  way  existed,  which 
had  not  been  used  in  living  memory,  on  the  strength  of  a 
report  that  some  deceased  person  had  said  that  there  once 
was  such  a  right. 

Aeticle  31.* 
DECLARATIONS    AS    TO   PEDIGREE. 

A  declaration  is  deemed  to  be  relevant  (subject 
to  the  conditions  hereinafter  mentioned)  if  it  re- 
lates to  the  existence  of  any  relationship  between 
persons,  whether  living  or  dead,  or  to  the  birth, 
marriage,  or  death  of  any  person,  by  which  such 


*  See  Note  at  end  of  Article. 


DECLARATIONS  AS  TO  PEDIGREE  .    283 

relationship  was  constituted,  or  to  the  time  or 
place  at  which  any  such  fact  occurred,  or  to  any 
fact  immediately  connected  with  Us  occurrence, 
(a) 

Such  declarations  may  express  either  the  per- 
sonal knowledge  of  the  declarant,  or  information 
given  to  him  by  other  persons  qualified  to  be  dec- 
larants, but  not  information  collected  by  him  from 
persons  not  qualified  to  be  declarants,  (b)  They 
may  be  made  in  any  form  and  in  any  document  or 
upon  any  thing  in  which  statements  as  to  rela- 
tionship are  commonly  made,  (c) 

The  conditions  above  referred  to  are  as  follows : 

(1)  Such  declarations  are  deemed  to  be  rele- 
vant only  in  cases  in  which  the  pedigree  to  which 
they  relate  is  in  issue,  and  not  to  cases  in  which  it 
is  only  relevant  to  the  issue,  (d) 

(2)  They  must  be  made  by  a  declarant  shown 
to  be  legitimately  related  by  blood  to  the  person 
to  whom  they  relate;  or  by  the  husband  or  wife 
of  such  a  person,  (e) 

(3)  They  must  be  made  before  the  question 
in  relation  to  which  they  are  to  be  proved  has 
arisen;  but  they  do  not  cease  to  be  deemed  to  be 

a  Illustration  (a).  [2  Wigmore  Ev.,  §  1480  et  seq.] 
b  Davies  v.  Lowndes,  6  M.  &  <;.  527.  [2  Wigmore  Ev.,  § 
1485  et  seq.  The  rule  stated  in  the  text  as  to  testimonial 
qualifications  of  declarant  has  been  enlarged  in  many  juris- 
dictions in  the  United  States,  as  may  be  seen  in  the  citations 
under   this   article.] 

C   Illustration    (c).      [2   Wigmore   Ev.,    §    1495.] 
d   Illustration     (d).      [This     rule     as    to    declarations    being 
confined    to    cases   of   pedigree    only   has   been    much    extended 
in    the   United    States.      See    examples    infra;    2    Wigmore    Ev., 
§§    1500-1502.] 

e  Shrewsbury  Peerage  Case,  7  11.  L.  C.  26.  [The  rule  given 
by  the  learned  author  as  to  relationship  of  declarant  has 
been  quite  extended   in   this  country.      See   note  b  supra.] 


284  DECLARATIONS    AS   TO    PEDIGREE 

relevant  because  they  were  made  for  the  purpose 
of  preventing  the  question  from  arising,  (f ) 

This  condition  applies  also  to  statements  as  to 
public  and  general  rights  or  customs  and  matters 
of  public  and  general  interest. 

Illustrations. 

(a)  The  question  is,  which  of  three  sons  (Fortunatus, 
Stephanus  and  Achaicus)  born  at  a  birth  is  the  eldest. 

The  fact  that  the  father  said  that  Achaicus  was  the 
youngest,  and  he  took  their  names  from  St.  Paul's  Epistles 
(see  1  Cor.  xvi.  17),  and  the  fact  that  a  relation  present  at 
the  birth  said  that  she  tied  a  string  round  the  second  child's 
arm  to  distinguish  it,  are  relevant. — 1 

(b)  The  question  is,  whether  one  of  the  cestuis  que  vie  In 
a  lease  for  lives  is  living. 

The  fact  that  he  was  believed  in  his  family  to  be  dead  is 
deemed  to  be  irrelevant,  as  the  question  is  not  one  of  pedi- 
gree.— 2 

(c)  The  following  are  instances  of  the  ways  in  which 
statements  as  to  pedigree  may  be  made:  By  family  conduct 
or  correspondence;  in  books  used  as  family  registers;  in  deeds 
and  wills;  in  inscriptions  on  tombstones,  or  portraits;  in  ped- 
igrees, so  far  as  they  state  the  relationship  of  living  persons 
known   to   the   compiler. — 3 

(d)  [The  question  is,  whether  the  husband  of  witness, 
Henry  Robinson,  was  the  son  of  one  Enoch  S.  Robinson. 

Testimony  of  the  witness  that  she  had  heard  her  husband 
and  others  speak  of  Enoch  as  the  father  of  her  husband,  and 
that  she  had  seen  a  deed  to  Enoch  S.  Robinson  in  her  hus- 
band's   trunk,    is    admissible.] — 4 


f  Berkeley  Peerage  Case,  4  Cam.  401-417.     [2  Wigmore  Ev., 
1483.] 


1  Vin.  Abr.  tit.  Evidence,  T.  b.  91.  The  report  calls  the  son 
Achicus. 

2  Whittuck  v.   Walters,    4   C.  &  P.   375. 

3  In  1  Ph.  Ev.  203-215,  and  T.  E.  ss.  583-587,  these  and 
many  other  forms  of  statement  of  the  same  sort  are  men- 
tioned; and  see  Davies  v.  Lowndes,  6  M.  &  G.  527  [2  Wigmore 
Ev.,   §   1495.] 

4  [Weiss  v.  Hall,    (Tex.  Civ.  App.),  135  S.  W.   384.] 


DECLARATIONS   AS   TO    PEDIGREE  285 

DECLARATIONS  AS  TO  PEDIGREE. 
In  General. 
Arkansas.  "Hearsay,  or,  as  it  is  generally  termed,  repu- 
tation," is  admissible  in  all  questions  of  pedigree.  And 
the  phrase  "pedigree"  embraces  not  only  descent  and  rela- 
tionship, but  also  the  facts  of  birth,  marriage,  death,  and 
the  times  when  these  events  happened. — Kelly's  Heirs  v. 
McGuire,  15  Ark.  555,  604. 

The  entry  of  a  deceased  parent,  or  other  relative  made 
in  a  family  Bible,  family  missal,  or  any  other  book,  or 
document  or  paper,  stating  the  fact  and  date  of  the  birth, 
marriage,  or  death,  of  a  child  or  relative,  is  regarded  as 
the  declaration  of  such  parent  or  relative  in  a  matter  of 
pedigree.  Correspondence  of  deceased  members  of  the 
family,  recitals  in  family  deeds,  descriptions  in  wills,  and 
other  solemn  acts,  are  original  evidence,  where  the  oral 
declarations  of  the  parties  are  admissible.  Inscriptions 
on  tombstones,  and  other  funeral  monuments,  engrav- 
ings on  rings,  inscriptions  on  family  portraits,  charts  of 
pedigree,  and  the  like,  are  also  admissible  as  original  evi- 
dence of  the  same  facts. — Kelly's  Heirs  v.  McGuire,  15 
Ark.  555,  604. 

A  prosecuting  witness  is  competent  to  testify  that  she 
is  a  white  woman. — Pleasant  v.  State,  15  Ark.  624. 
California.  The  admissibility  of  pedigree  evidence  by 
declarations  has  for  its  only  basis  the  close  and  intimate 
relations  existing  between  the  declarant  and  the  party 
to  whom  the  declarations  pertain.  The  declarations,  to 
be  admissible,  must  not  only  be  made  by  a  deceased  mem- 
ber of  the  family,  but  they  must  be  made  of  and  concern- 
ing a  member  of  the  same  family.  (Declarations  of  de- 
ceased, claimed  to  be  the  husband  of  appellant  by  "con- 
tract" marriage,  a  few  weeks  before  his  death,  that  he 
was  a  widower,  inadmissible  in  favor  of  respondents, 
their  whole  case  resting  on  the  fact  that  he  was  not  a 
member  of  appellant's  family.) — James'  Estate,  In  re,  124 
Cal.  653,  57  P.  578. 

It  is  the  common  reputation  in  the  family,  and  not  the 
common  reputation  in  the  community  that  is  admissible 
to  establish  pedigree. — Heaton's  Estate,  In  re,  135  Cal. 
385,  67  P.  321. 


286  DECLARATIONS   AS    TO    PEDIGREE 

Deelaruticus  concerning  family  history  and  relationship 
are  not  admissible  to  prove  pedigree  or  relationship  ex- 
cept when  they  are  made  by  members  of  the  family  as 
natural  or  spontaneous  declarations  on  the  subject  and 
before  any  dispute  has  arisen  over  the  question  or  any 
claim  has  been  made  to  the  establishment  of  which  the 
declarations  would  be  material.  (Conversations,  the  pur- 
pose of  which  was  to  obtain  evidence  concerning  the  heir- 
ship of  an  estate,  inadmissible.) — Walden's  Estate,  In  re, 
166  Cal.  446,  137  P.  35. 

Kansas.  Declarations  of  deceased  persons  concerning 
family  affairs  are  relevant  where  fact  of  relationship, 
descent,  birth  or  marriage  in  controversy. — Shorten  v. 
Judd,   56   Kan.   43,   42   P.   338. 

Nebraska.  A  member  of  the  family,  living  therein,  is 
presumptively  qualified  as  a  witness  to  prove  the  age  and 
pedigree  of  the  other  members;  but  when  it  is  shown  on 
cross-examination  that  the  knowledge  of  such  witness  is 
derived,  not  from  family  tradition  and  repute,  but  from 
statements  made  by  a  stranger,  the  testimony  should 
be  excluded.  (Testimony  of  wife  as  to  age  of  deceased 
husband  excluded,  her  only  knowledge  being  obtained  from 
the  oral  assertion  of  the  priest  at  announcement  of  the 
banns.)— Grand  Lodge  v.  Bartes,  69  Neb.  631,  96  N.  W.  186. 
Texas.  The  witness  may  testify  that  she  had  heard  her 
grandfather  say  that  G.  B.  J.  was  his  son,  and  that  wit- 
ness' mother  said  that  he  was  her  brother. — Louder  v. 
Schluter,  78  Tex.  103,  14  S.  W.  205. 

To  prove,  pedigree,  hearsay  evidence  is  admissible,  when 
based  upon  information  derived  from  deceased  relatives 
or  from  family  history;  but  to  render  it  admissible  the 
sources  of  information  must  be  given. — Munn  v.  Mayes, 
9  Tex.  Civ.  App.  366,  30  S.  W.  479. 

Declarations  are  admissible  to  prove  the  facts  of  death, 
birth  and  marriage  in  all  cases  where  they  are  under  in- 
vestigation, under  the  same  limitations  as  would  apply  in 
cases  of  pedigree — that  is,  such  declarations  must  have 
been  made  before  the  beginning  of  the  controversy  and 
the  declarant  must  be  dead  at  the  time  the  testimony 
was  offered. — Gorham  v.  Settegast,  44  Tex.  Civ.  App.  254, 
98   S.  W.   665,   672. 


DECLARATIONS    AS    TO    PEDIGREE  287 

Declarations  of  deceased  members  of  a  family  and  its 
traditions  regarding  its  history,  are  admissible. — Flores 
v.  Hovel,   (Tex.  Civ.  App.),  125  S.  W.  606. 

Questions  of  pedigree,  such  as  marriage,  births  and 
deaths  of  members  of  a  family,  making  family  history, 
may  be  proved  by  declarations  of  members  of  the  family. 
Such  testimony  generally  comes  down  in  family  talk,  dis- 
cussing such  matters  among  themselves,  handing  down 
family  history.— Wolf  v.  Wilhelm,  (Tex.  Civ.  App.),  146 
S.  W.  216. 

Death    cr    Unavailability    of    Declarant. 

Declarant  must  be  dead  at  the  time  of  trial,  or  out  of 
the  state— State  v.  McDonald,  55  Or.  419,  106  P.  444; 
Wolf  v.  Wilhelm,  (Tex.  Civ.  App.),  146  S.  W.  216. 
California.  Entry  made  by  mother  in  family  Bible  not 
competent  to  prove  age  when  the  mother  is  living.  (Ad- 
mitted, though  mother  in  court  and  testifying  as  to  age, 
in  People  v.  Ratz,  115  Cal.  132,  46  P.  915,  though  question 
not  raised.)— People  v.  Mayne,  118  Cal.  516,  50  P.  654. 
Texas.  Evidence  of  entries  in  a  family  Bible  are  to  be 
excluded  where  it  appears  that  the  mother  is  within  reach 
of  the  process  of  the  court. — Campbell  v.  Wilson,  23 
Tex.  252. 

Where  a  witness  testifies  from  common  repute  in  his 
family  as  to  who  its  members  were,  their  relationship  to 
each  other,  and  to  the  facts  of  birth,  death,  etc.,  it  need 
not  be  shown  that  the  persons  whose  declarations  are 
offered  are  dead. — Smith  v.  Kenney,  (Tex.  Civ.  App.),  54 
S.    W.    801. 

Declarant  must  be  dead  or  inaccessible  at  the  time  the 
testimony  is  offered  — Gorhan  v.  Settegast,  44  Tex.  Civ. 
App.   254,   98   S.    YV.   665.  672. 

Relationship   of   Declarant. 

Before  declarations  of  relationship  can  be  received  the 
relationship  of  declarant  to  the  family  must  be  proved 
by  other  evidence  than  his  declarations. — Thompson  v. 
Woolf.  S  Or.  4T.4;  Contra,  Smith  v.  Kenney,  (Tex.  Civ. 
App.),  54   S.   W.   801. 

California.  The  fact  being  shown  by  evidence  aliunde 
that  a  girl  was  a  member  of  the  family  of  deceased,  his 
declarations    were   admissible   upon    the    question    of   her 


288  DECLARATIONS    AS    TO    PEDIGREE 

paternity  and  legitimacy. — Heaton's  Estate,  In  re,  135 
Cal.  385,  67  P.  321. 

Nebraska.  Declarations  of  plaintiffs'  ancestor  as  to 
transactions  and  relations  with  his  cousin  claimed  to  be 
identical  with  intestate,  are  admissible  without  first 
proving  the  identity  of  the  cousin  with  intestate. — Lyle's 
Estate,  In  re,  93  Neb.  768,  141  N.  W.  1127. 
Oregon.  Declarations  of  a  deceased  intestate,  whose  prop- 
erty has  escheated,  are  admissible  for  the  purpose  of 
identifying  him  as  the  one  who,  as  shown  by  other  testi- 
mony, was  the  relative  of  plaintiffs. — Young  v.  State,  36 
Or.   417,   59   P.   812. 

Texas.  A  witness  who  is  not  shown  by  any  other  testi- 
mony than  his  own  to  be  a  cousin  of  a  certain  person, 
may  testify  as  to  family  history. — Smith  v.  Kenney,  (Tex. 
Civ.  App.),  54  S.  W.  801. 

The  rule  that,  when  declarations  of  a  member  of  a 
family  are  sought  to  be  used,  it  must  be  shown  outside 
of  such  declarations  that  the  declarant  was  related,  has 
no  application  when  the  evidence  offered  is  of  what  was 
common  repute  in  the  family,  the  witness  being  the  de- 
clarant.—Smith  v.  Kenney,  (Tex.  Civ.  App.),  54  S.  W.  801. 

In  a  suit  by  alleged  heirs  claiming  an  estate,  declara- 
tions of  a  deceased  relative  of  plaintiffs  are  admissible  as 
to  the  family  history  of  the  person  who  died  seized, 
although  it  is  not  shown  that  declarant  was  a  relative 
of  the  latter.— Overby  v.  Johnston,  42  Tex.  Civ.  App.  348, 
94  S.  W.  131. 

Relationship  of  Witness. 
Arkansas.  Statements  of  a  witness  that  he  had  received 
information  verbally  and  by  letter  as  to  the  death  of  a 
party,  when  it  does  not  appear  that  the  witness  was  re- 
lated to  the  party  in  question,  or  how  he  obtained  his 
information  is  not  competent  evidence  of  that  fact. — 
Wilson  v.  Brownlee,  24  Ark.  589. 

Declarations  of  Others  Than   Relatives. 
Texas.     The   death   of  a   person   may   be   proved   by   the 
declarations  of  other  persons  since  dead. — Turner  v.  Sea- 
lock,  21  Tex.  Civ.  App.  594,  54  S.  W.  358. 

Declarations  made  sixty  years  before  trial  by  a  de- 
ceased companion  of  a  patentee,  as  to  the  presence  of  the 


DECLARATIONS    AS   TO    PEDIGREE  289 

latter  in  the  Texas  army,  and  his  decease  thereafter  in 
Texas,  unmarried,  are  admissible,  the  declarant  being 
shown  to  have  no  interest  and  in  a  position  to  know  the 
truth.— Lewis  v.  Bergess,  22  Tex.  Civ.  App.  252,  54  S. 
W.   609. 

FORM    OF    ASSERTION. 

The  declarations  treated  under  this  article  are  usually 
in  the  form  of  oral  statements;   see  passim. 
California.     A  will  is   competent    evidence    to    show  the 
testator's    family   relationship. — Russell   v.    Langford,    135 
Cal.   356,   67   P.   331. 

Colorado.  Letters  received  from  deceased  containing 
statements  as  to  his  marriage  and  family,  and  extracts 
from  parish  registers,  and  an  emigrant's  pass,  found  in  a 
chest  of  deceased,  are  admissible  as  declarations  of  de- 
ceased.—Kansas  Pac.  R.  Co.  v.  Miller,  2  Colo.  442,  453, 
461. 

Texas.  Recitals  in  a  deed  that  the  grantors  were  heirs 
of  the  original  owner  are  not  admissible  as  declarations 
of  such  grantors  to  prove  their  relationship  to  such  per- 
son.—Watkins  v.  Smith,  91  Tex.  589,  45  S.  W.  560. 

Recitals  in  a  will  are  competent  to  prove  the  marriage 
of  the  daughter  of  testatrix. — Summerhill  v.  Darrow,  94 
Tex.  71,  57  S.  W.  942. 

The  declaration  of  a  deceased  as  to  matters  of  family 
history  may  be  in  the  form  of  an  affidavit. — Wolf  v.  Wil- 
helm,   (Tex.  Civ.  App.),  146  S.  W.  216. 

Entries   in    Family    Bible. 

Entries  in  family  Bible  tending  to  show  time  of  birth 
of  a  child  should  be  excluded  where  the  mother  is  within 
jurisdiction,  though  the  father  be  dead. — Campbell  v. 
Wilson,   23  Tex.  352,  76  Am.  Dec.  67. 

Or  when  the  mother  is  living  and  available. — People  v. 
Mayne,  118  Cal.  516,   50  P.   654. 

The  admission  of  a  family  Bible  containing  a  family 
tree  or  record  does  not  depend  on  authorship  or  authen- 
ticity of  the  entries  but  upon  the  fact  that  it  is  the  family 
Bible  and  record  and  received  as  such  by.  those  whose 
genealogy  or  pedigree  it  concerns. — People  v.  Ratz,  115 
Cal.  132,  46  P.  915;  Colbert's  Estate,  In  re,  51  Mont.  455, 
153  P.  1022. 


290  DECLARATIONS   AS    TO    PEDIGREE 

California.  Handwriting  of  entries  in  family  Bible  need 
not  be  proved.— People  v.  Ratz,  115  Cal.  132,  46  P.  915. 

Entry  in  family  Bible  admissible  to  show  age  of  child. — 
People  v.  Slater,  119  Cal.  620,  51  P.  957. 
Montana.  The  fact  that  records  in  a  family  Bible  were 
mutilated  and  of  doubtful  authenticity  does  not  render  it 
inadmissible. — Colbert's  Estate,  In  re,  51  Mont.  455,  153 
P.  1022. 

North  Dakota.  Entries  of  births,  deaths  and  matters  of 
family  history  in  a  family  Bible,  though  hearsay,  are 
admissible  as  past  declarations  of  matters  of  family  his- 
tory.—Peterson's  Estate,  In  re,  22  N.  D.  480,  134  N.  W.  751. 

MATTERS  ASSERTED. 
General  and  Family  History. 
Arkansas.  Declarations  of  members,  or  relatives  of  the 
family,  or  general  repute  in  the  family,  are  good  evidence 
•to  establish  marriage,  death,  birth,  heirship,  and  the  like, 
and  may  be  proved  by  others  as  well  as  surviving  mem- 
bers of  the  family. — Kelly's  Heirs  v.  McGuire,  15  Ark. 
555,   605. 

California.  Declarations  of  one  of  two  brothers  made 
residuary  legatees,  that  the  other  had  enlisted  in  the 
Federal  army  and  was  believed  to  have  been  killed,  are 
admissible  to  show  that  such  brother  was  dead,  and  to 
entitle  the  declarant's  heirs  to  the  whole  estate. — Woolsey 
v.  Williams,  128  Cal.  552,  61  P.  670. 

Declarations  of  testatrix  that  she  had  a  nephew  by  the 
name  of  Albion  C.  Taylor  in  Lowell  are  admissible,  under 
the  statute.— Taylor  v.  McCowen,  154  Cal.  798,  99  P.  351. 

Declarations  of  members  of  a  family  of  which  a  child 
was  a  member  are  admissible  to  show  her  paternity. — 
Heaton's  Estate,  In  re,  135  Cal.  385,  67  P.  321. 

Declarations  of  Peter  that  he  had  a  brother  living  in 
California  are  admissible. — Hartman's  Estate,  In  re,  157 
Cal.  206,  107  P.  105. 

Kansas.  Where  the  facts  of  relationship  and  descent,  or 
of  birth,  marriage  or  death,  are  in  controversy,  evidence 
is  properly  admitted  of  what  the  witness  heard  members 
of  the  family,  since  deceased,  say  as  to  those  facts. 
(Declarations   of  husband   before   marriage,   that   he   had 


DECLARATIONS   AS    TO    PEDIGREE  291 

not  been  married  to  an  Indian  woman,  by  whom  he  had 
two   children.) — Smith  v.   Brown,   8   Kan.   608. 

Declarations  of  a  person  deceased  as  to  relationship, 
descent,  birth  or  marriage  are  admissible,  where  such 
declarations  concern  the  family  affairs  of  declarant. — 
Shorten  v.  Judd,  56  Kan.  43,  42  P.  337. 

Declarations  of  deceased  concerning  his  relations  with 
a  woman,  tending  to  prove  a  common  law  marriage  and  the 
paternity  of  her  son,  are  admissible. — Shorten  v.  Judd,  56 
Kan.  43,  42  P.  337. 

Nebraska.  Declarations  of  deceased  as  to  family  history, 
etc.,  of  his  relative,  may  be  admitted  without  preliminary 
proof  of  the  identity  of  such  relative  with  the  person 
whose  estate  is  claimed. — Lyle's  Estate,  In  re,  93  Neb.  768, 
141  N.  W.  1127. 

South  Dakota.  Declarations  of  a  deceased  brother  of 
plaintiffs  that  he  had  seen  and  talked  with  his  father  at 
a  certain  town  on  a  certain  date  are  admissible. — McClel- 
lan's  Estate,  In  re,  20  S.  D.  498,  107  N.  W.  681. 
Texas.  A  witness  may  state  that  according  to  his  family 
history  the  father  of  a  witness  had  a  nephew  named  W. 
W.,  who  went  to  Texas  to  enlist  in  the  Mexican  war  and 
was  killed  at  Goliad.— Byers  v.  Wallace,  87  Tex.  503,  28 
S.  W.  1056. 

Declarations  of  family  may  prove  family  history. — Wolf 
v.  Wilhelm,  (Tex.  Civ.  App.),  146  S.  W.  216. 

Declarations  made  by  one  deceased  heir,  of  relation- 
ship adverse  to  another  heir  inadmissible. — Wolf  v.  Wil- 
helm, (Tex.  Civ.  App.).  146  S.  W.  216. 

Declarations  as  to  Death. 
California.  Hearsay  information  of  death,  derived  from 
the  immediate  family  of  deceased,  is  sufficient  prima  facie 
to  establish  that  fact. — Anderson  v.  Parker,  6  Cal.  197. 
Texas.  Declarations  of  strangers  are  admissible  to  prove 
a  death.— Turner  v.  Sealock,  21  Tex.  Civ.  App.  594,  54  S. 
W.  358. 

A  husband  of  the  granddaughter  of  intestate  may  testify 
as  to  the  date  of  the  death  of  intestate,  as  a  matter  of 
family  history. — Wall  v.  Lubbock.  (Tex.  Civ.  App.),  118 
S.  W.   866. 


292  DECLARATIONS   AS   TO    PEDIGREE 

Declarations  Showing    Marriage. 
Colorado.     Declarations  of  deceased,  contained  in  letters 
written  by  him,  are  admissible  to   show  his  marriage. — 
Kansas  Pac.  R.  Co.  v.  Miller,  2  Colo.  442. 
Declarations  as  to  Age. 
California.     A   person's   age   may  be   proved   by  his   own 
testimony,  and  the  fact  that  knowledge  of  that  age  is  de- 
rived from  the  statements  of  the  parents  or  from  family 
reputation    does    not    render    it    inadmissible. — People    v. 
Ratz,  115  Cal.  132,  46  P.  915. 

Kansas.  A  girl  may  testify  that  she  will  be  21  years  old 
on  a  certain  date,  though  she  does  not  remember  the  year 
of  her  birth.— State  v.  McClain,  49  Kan.  730,  31  P.  790. 
Nebraska.  A  wife  may  testify  as  to  the  birthday  of  her 
husband,  her  knowledge  being  acquired  through  his 
declarations  and  from  family  history. — Grand  Lodge  v. 
Bartes,  69  Neb.  631,  98  N.  W.  715. 

Oklahoma.  Statements  of  deceased,  declaring  that  she 
was  18  years  old  on  a  certain  date,  are  admissible. — Bell 
v.  Bearman,  37  Okl.  645,   133  P.  188. 

Texas.  Declarations  of  a  brother  as  to  the  age  of  his 
sister  are  inadmissible,  unless  the  brother  is  dead. — Danley 
v.  State,  44  Tex.  Civ.  App.  428,  71  S.  W.  958. 

Declarations  as  to  Legitimacy. 
Arkansas.  Declarations  and  actions  of  a  father  are  ad- 
missible to  establish  the  legitimacy  of  his  children. — 
Kelly's  Heirs  v.  McGuire,  15  Ark.  555,  605. 
California.  The  declarations  of  a  deceased  father  are  ad- 
missible to  prove  the  legitimacy  or  illegitimacy  of  his 
children. — Pearson  v.  Pearson,  46  Cal.  609;  Heaton's  Es- 
tate, In  re,  135  Cal.  385,  67  P.  321. 

Declarations  of  deceased  made  to  numerous  witnesses, 
that  respondent  was  his  daughter,  though  he  was  not 
married  until  seven  or  eight  years  after  the  child's  birth, 
are  admissible  to  prove  illegitimacy. — Heaton's  Estate,  In 
re,  139  Cal.  237,  73  P.  186. 

Colorado.  Declarations  of  a  deceased  parent  are  admis- 
sible to  show  the  illegitimacy  of  a  daughter. — Kansas  Pac. 
Ry.  Co.  v.  Miller,  2  Colo.  442,  453,  460. 


DECLARATIONS    AS    TO    PEDIGREE  293 

Oregon.  Declarations  and  acts  of  a  putative  mother  are 
admissible  to  show  the  illegitimacy  of  a  child. — State  v. 
McDonald,  55  Or.  419,  104  P.  967. 

Declarations  of  an  intestate  showing  his  own  illegiti- 
macy are  admissible  as  against  those  claiming  under  him. 
—State  v.  McDonald,  55  Or.  419,  104  P.  967. 
Texas.  An  illegitimate  child  may  testify  that  her  mother 
who  has  been  dead  thirty  years  told  her  who  her  father 
was. — Coker  v.  Cooper's  Estate,  (Tex.  Civ.  App.),  176  S. 
W.  145. 

Declarations  Showing    Identity. 
Oregon.     Declarations  of  deceased  as  to  who  he  was  and 
where  he  came  from  are  admissible  to  establish  his  iden- 
tity as  a  relative  of  plaintiffs. — Young  v.  State,  36  Or.  417, 
59  P.  812. 

Texas.  Declarations  of  living  persons  are  admissible  to 
show  their  identity. — Nehring  v.  McMurrian,  94  Tex.  45, 
57  S.  W.  943. 

Recitals  in  a  deed  that  the  grantor  is  the  wife  of  one 
J.  M.  L.  are  admissible  for  the  purpose  of  identifying  her 
as  the  devisee  of  the  same  name  and  relationship  men- 
tioned in  a  will. — Hill  &  Johns  v.  Lofton,  (Tex.  Civ.  App.), 
165  S.  W.  67. 

Assertions  of  Various  Facts. 
California.  Declarations  of  the  father  of  claimants  un- 
der a  will  devising  an  estate  to  his  two  sons,  one  being 
of  the  same  name  as  declarant,  that  the  brother  of 
declarant,  according  to  the  family  understanding  and  be- 
lief, h?d  enlisted  in  the  Federal  army  and  was  believed 
to  have  been  killed,  and  had  never  married,  are  admis- 
sible.—Woolsey  v.  Williams,  128  Cal.  552,  61  P.  670. 
Oregon.  Declarations  of  deceased  as  to  his  true  name 
enlistment  in  army  and  desertion,  and  change  of  name  to 
conceal  identity,  admissible. — Young  v.  State,  36  Or.  417, 
59  P.  812. 

Texas.  Other  matters  than  those  directly  of  pedigree  may 
be  so  intimately  connected  with  pedigree  as  to  permit 
their  proof  by  declarations  of  members  of  the  family. — 
Byers  v.  Wallace,  87  Tex.  511,  28  S.  W.  1056  (letter  from 
cousin  of  W.  just  before  a  massacre  in  which  the  writer 


294  DECLARATIONS  AS  TO  PEDIGREE 

and  a  man  of  the  same  name  as  W.  were  killed,  as  to  the 
presence  of  W.  in  the  army) ;  Wall  v.  Lubbock,  52  Tex. 
Civ.  App.  405,  118  S.  W.  886  (time  of  death  of  wife's  grand- 
father). 

INTEREST  OF  DECLARANT. 
Texas.  Declarations  that  deceased  had  a  nephew  named 
W.  W.,  who  was  killed  at  Goliad  are  inadmissible,  where 
declarant  is  shown  to  be  the  only  heir  if  the  statement 
was  true.— Byers  v.  Wallace,  87  Tex.  503,  28  S.  W.  1056. 
Declarations  of  deceased's  sister  that  her  brother  had 
died  are  inadmissible,  where  she  would  be  his  heir. — Tur- 
ner v.  Sealock,  21  Tex.  Civ.  App.  594,  54  S.  W.  358;  Lewis 
v.  Burgess,  22  Tex.  Civ.  App.  252,  54  S.  W.  609. 

ANTE  LITEM   MOTAM. 

Declarations  post  litem  motam  are  inadmissible. — Wal- 
den's  Estate,  In  re,  166  Cal.  446,  137  P.  35;  Perkins  v. 
Baker,  41  Okl.  288,  137  P.  661;  Nehring  v.  McMurrian.  94 
Tex.  45,  57  S.  W.  943;  Kirby  v.  Boaz,  41  Tex.  Civ.  App. 
282,  91  S.  W.  642  (deposition  in  another  suit). 
Oklahoma.  Affidavit  of  deceased  mother  of  an  alleged 
minor  as  to  his  age,  made  after  the  execution  of  a  deed 
by  him  which  is  the  subject  of  controversy,  inadmissible. 
—Perkins  v.  Baker,  41  Okl.  288,  137  P.  661. 
Texas.  Declarations  by  insured's  father  at  the  time  of 
application  for  policy,  as  to  date  of  insured's  birth,  are 
not  ante  litem  motam. — Mutual  Reserve  Life  Ins.  Co.  v. 
Jay,  50  Tex.  Civ.  App.  165,  109  S.  W.  1116. 

Declarations  must  be  made  ante  litem  motam. — Wolf  v. 
Wilhelm,   (Tex.  Civ.  App.),  146  S.  W.  216. 

The  fact  that  declarations  are  repeated  post  litem 
motam  does  not  render  them  inadmissible. — Wolf  v.  Wil- 
helm, (Tex.  Civ.  App.),  146  S.  W.  216. 

AUTHENTICATION,  AND  QUALIFICATIONS  OF 
WITNESS. 
California.  Testimony  of  the  mother  that  the  book  of- 
fered was  the  family  Bible  and  contained  the  record  of 
her  family  renders  it  admissible  to  prove  the  age  of  her 
child,  though  the  mother  did  not  know  how  to  read  or 
write  English  and  could  not  tell  whether  or  not  the  book 


DECLARATIONS  AS  TO  PEDIGREE  295 

was  correct,  since  the  admissibility  of  the  book  does  not 
depend  on  proof  of  handwriting  or  authorship  of  the 
entries.— People  v.  Ratz,  115  Cal.  132,  46  P.  915. 

A  stranger  in  the  community,  basing  his  opinion  upon 
what  residents  there  told  him,  cannot  testify  as  to  the 
reputation  of  a  resident  of  such  community. — Tingley  v. 
Times  Mirror  Co.,  151  Cal.  1,  89  P.  1097. 

A  marriage  certificate  of  plaintiff's  mother  with  a  per- 
son of  the  same  name  as  a  devisee  in  testator's  will,  to- 
gether with  a  record  of  the  baptism  of  her  sons,  in  which 
the  father's  name  was  stated  the  same  as  that  in  the 
will,  is  sufficient  to  connect  the  husband  with  the  family 
to  which  testator  belonged,  so  as  to  justify  the  admission 
of  his  declarations  made  long  before  the  execution  of  the 
will.— Woolsey  v.  Williams,  128  Cal.  552,  61  P.  670. 
Montana.  Witnesses  who  lived  in  the  community  may 
testify  as  to  the  general  reputation  of  a  person,  although 
they  never  heard  his  reputation  discussed  with  respect  to 
the  particular  fact  sought  to  be  proved. — State  v.  Shafer, 
22  Mont.  17,  55  P.  526. 

Oregon.  A  witness  cannot  testify  as  to  the  reputation  for 
chastity  of  a  female  alleged  to  have  been  seduced,  based 
upon  what  he  had  observed,  and  not  upon  what  he  had 
heard  others  say. — Anderson  v.  Aupperle,  51  Or.  556,  95 
P.  330. 

Witnesses  who  have  lived  in  the  vicinity  of  defendant's 
residence  may  testify  as  to  his  character  and  reputation, 
although  they  had  never  heard  the  matter  discussed,  but 
had  heard  him  spoken  of  favorably. — State  v.  Barretta, 
(Utah),  155  P.  343. 

KIND   OF   ISSUES   INVOLVED. 

California.  A  case  of  rape  where  age  is  the  issue  is  not 
a  matter  of  pedigree,  so  as  to  admit  entries  in  family 
Bibles.  (Admitted,  however,  in  People  v.  Ratz,  115  Cal. 
132,  46  P.  915,  but  the  question  apparently  not  raised.) — 
People  v.  Mayne,  118  Cal.  516,  50  P.  654. 
Texas.  Recitals  in  the  will  of  a  mother,  to  the  effect  that 
her  only  daughter  was  married,  are  admissible,  though 
the  case  is  not  one  of  pedigree. — Summerhill  v.  Darrow,  94 
Tex.  71,  57  S.  W.  942. 


296  DECLARATIONS  AS  TO  PEDIGREE 

The  testimony  which  will  prove  a  fact  for  the  purpose 
of  sustaining  pedigree  will  prove  the  same  fact  for  the 
purpose  of  sustaining  any  other  right  depending  upon  the 
same  fact.  (Recitals  in  a  mother's  will  competent  to 
show  daughter  was  a  married  woman  at  the  time  a  cer- 
tain payment  by  the  daughter  was  made,  and  that  the 
statute  of  limitations  did  not  therefore  run  against  her.) 
— Summerhill  v.  Darrow,  94  Tex.  71,  57  S.  W.  942. 

MODE  OF  POOF. 

Texas.  Evidence  to  prove  the  fact  that  a  declaration  was 
made  may  be  received  from  any  one  who  heard  it  made, 
and  this  kind  of  evidence  does  not  come  within  the  defini- 
tion of  hearsay. — Nehring  v.  McMurrian,  94  Tex.  51,  57 
S.  W.  945. 

A  member  of  a  family  may  testify  as  to  his  family  his- 
tory, without  a  showing  that  his  declarants  are  dead. — 
Wall  v.  Lubbock,  52  Tex.  Civ.  App.  405,  118  S.  W.  886. 

Evidence  of  declarations  as  to  family  history  may  not 
be  admitted,  where  living  witnesses  are  available  to 
prove  the  same  facts. — Wolf  v.  Wilhelm,  (Tex.  Civ.  App.), 
146  S.  W.  216. 

QUESTIONS   FOR  COURT. 

Nebraska.  The  question  of  the  competency  of  the  decla- 
rations of  a  deceased  ancestor  as  to  family  pedigree  and 
history  is  for  the  court. — Lyle's  Estate,  In  re,  93  Neb. 
768,   141  N.  W.   1127. 

NOTE   XXI. 
(To   Article   31.) 

See  [2  Wigmore  Ev.,  §§  1480-1503);  1  Ph.  Ev.  197-233;  T.  E. 
ss.  571-592;  Best,  633;  R.  N.  P.  49-50. 

The  Berkeley  Peerage  Case  (Answers  of  the  Judges  to 
the  House  of  Lords),  4  Cam.  401,  which  established  the  third 
condition  given  in  the  text;  and  Davies  v.  Lowndes,  6  M.  & 
G.  471  (see  more  particularly  pp.  525-529,  in  which  the  ques- 
tion of  family  pedigrees  is  fully  discussed)  are  specially  Im- 
portant on  this  subject. 

As  to  declarations  as  to  the  place  of  births,  &c,  see  Shields 
v.  Boucher,  1  De  G.  &  S.  49-58. 


STATEMENTS   OF   MENTAL   CONDITION  297 

Article  31a. 
[statements  of  mental  condition.] 

[A  declaration  is  deemed  to  be  relevant  when  it 
discloses  a  mental  condition  of  the  declarant,  (a) 
or 

when  it  shows  a  present,  or  in  some  jurisdic- 
tions a  past  intent,   (b)  or 

when  it  is  expressive  of  the  present  existence 
of  pain  or  suffering,  (c)] 

Illustrations. 

(a)  [The  question  is,  whether  an  insured  committed  sui- 
cide. 

A  letter  written  by  him,  addressed  to  the  captain  of  the 
vessel  on  which,  as  a  passenger,  he  was  last  seen,  found  in 
his  stateroom,  in  which  letter  he  expressed  an  intention  of 
committing    suicide,    Is   relevant.] — 1 

(b)  [The  question  is,  what  was  the  cause  of  a  person's 
malady. 

His  declarations  as  to  the  nature,  symptoms  and  effects  of 
the  disease  or  injury  from  which  he  was  suffering  are  com- 
petent  evidence.] — 2 

(c)  [The  question  is,  whether  the  acts  of  the  defendants 
and  their  associates  disturbed  the  public  peace. 

The  fact  that  the  marching  of  the  miners'  union,  to  which 
defendants  belonged,  their  vote  at  the  hall  to  shut  down  the 
works  at  which  they  labored,  and  the  proceedings  at  the 
shaft  where  they  gathered,  caused  a  general  feeling  of  alarm 
and  insecurity,  was  admissible,  together  with  testimony  that 
the  witnesses  themselves  had  such  feelings  and  heard  others 
express  the  same.] — 3 


a    [See  illustration    (c);   3  Wigmore  Kv„   §   1714  et  seq.] 
b    [See  illustration    (a);   3   Wigmore  Ev.,   §   1725  et  seq.] 
c    [See  illustration    (b);   3  Wigmore  Ev.,    §   1718-1723.] 

1  [Rogers   v.    Manhattan   Life    Ins.    Co.,    138    Cal.    285,    71   P. 
348.] 

2  [Puis  v.   Grand   Lodge  A.   O.   U.   W.,   13   N.   D.   559,   102  N. 
W.    165.] 

3  [People   v.    O'Loughlin,    3    Utah   133,    1    P.    653.] 


298  STATEMENTS   OF   MENTAL   CONDITION 

STATEMENTS    SHOWING    MENTAL   CONDITION. 

In   General. 

California.  Declarations  of  a  testator  showing  dissatis- 
faction with  a  will  are  inadmissible  to  show  undue  in- 
fluence.—Calkin's  Estate  v.  Calkins,  112  Cal.  296,  44  P. 
577. 

Declarations  of  the  grantor  made  subsequent  to  the 
execution  of  the  instrument  are  admissible  to  show  his 
state  of  mind  at  the  time  of  execution. — Piercy  v.  Piercy, 
18  Cal.  App.  751,  124  P.  561. 

Kansas.  Upon  the  issue  whether  a  deed  made  by  a  father 
to  a  son  was  a  preferential  gift  or  an  advancement,  subse- 
quent statements  of  the  grantor  are  admissible  if  they 
tend  to  show  what  his  purpose  was  at  the  time  of  its 
execution. — Martin  v.  Shumway,  89  Kan.  892,  132  P.  993. 

Statements  of  the  maker  of  an  instrument  are  admis- 
sible to  show  undue  influence. — Fairbank  v.  Fairbank,  92 
Kan.  45,  139  P.  1011. 

Oregon.  The  fact  that  two  or  three  minutes  after  a 
homicide,  defendant  was  running  up  the  street  with  his 

pistol  in  his  hand  shouting,  "I  am  the  toughest  son  of  a 

that  ever  struck  this  town,"  is  admissible. — State  v. 
Brown,  28  Or.  147,  41  P.  1042. 

Texas.  Statements  of  accused  that  he  wanted  to  get  away 
from  deceased  not  admitted. — Red  v.  State,  39  Tex.  Cr. 
R.  414,  46  S.  W.  408. 

That  Immediately  after  a  killing  defendant  ran  to  the 
city  marshal  who  arrived  In  a  few  seconds  and  begged 
to  be  put  in  jail  to  save  his  life,  and  that  somebody  ran 
after  and  tried  to  shoot  defendant  is  admissible. — Nelson 
v.  State,   (Tex.  Cr.  R.),  58  S.  W.  107. 

Statements  of  accused  before  the  homicide,  that  he  did 
not  wish  to  have  trouble  with  deceased  admissible. — 
Poole  v.  State,  45  Tex.  Cr.  R.  348,  76  S.  W.  565. 

Declarations  of  a  grantor  made  after  the  execution  of  a 
deed  are  not  admissible  to  show  his  mental  condition 
when  the  deed  was  made,  unless  made  so  near  that  date 
as  to  justify  the  inference  that  it  existed  at  that  time. — 
Rankin  v.  Rankin,  105  Tex.  451,  151  S.  W.  527. 


STATEMENTS   OF   MENTAL   CONDITION  299 

Statements  of  Feelings  and   Emotion. 

In  an  action  for  the  alienation  of  affections  of  a  hus- 
band, the  declarations  of  the  husband  as  to  his  estrange- 
ment and  separation  from  plaintiff  are  competent  to  show 
the  effect  of  the  wrongful  interference  of  defendant  and 
of  his  attempt  to  induce  a  separation. — Williams  v.  Wil- 
liams, 20  Colo.  51,  37  P.  614;  Nevins  v.  Nevins,  68  Kan. 
410,  75  P.  492. 

Arkansas.  Declarations  of  colored  voters,  on  their  way 
home  from  another  county  the  day  after  election,  with 
tickets  in  their  hands  similar  to  those  they  said  they  had 
voted,  are  admissible  as  declarations  comprising  a  part 
of  the  res  gestae,  not  to  reject  the  particular  votes,  but 
to  show  the  existence  of  a  fraudulent  combination. — Pat- 
ton  v.  Coates,  41  Ark.  Ill,  130. 

Where  the  bodily  or  mental  feelings  are  material  to  be 
proved,  the  usual  expression  of  such  feelings  as  made  at 
the  time  in  question  are  original  evidence.  If  they  are 
the  natural  language  of  the  affections,  whether  of  body  or 
mind,  they  furnish  satisfactory  evidence,  and  often  the 
only  proofs  of  its  existence. — Taylor  v.  McClintock,  87 
Ark.  243,  112  S.  W.  405. 

Kansas.  A  letter  written  by  deceased  immediately  pre- 
ceding her  death,  which  showed  that  she  was  in  a  health- 
ful condition  of  body  and  mind  and  contained  nothing 
prejudicial  to  defendant,  was  admissible  to  show  the 
condition  of  her  body  and  mind,  and  to  repel  the  theory 
that  she  committed  suicide. — State  v.  Baldwin,  36  Kan. 
10,  12  P.  318. 

When  the  inquiry  involves  tne  existence  of  a  bodily  or 
mental  state,  the  declarations  of  the  party  when  under  the 
physical  or  mental  feeling  in  question,  and  disclosing  his 
subjection  to  it  are  not  hearsay  but  original  evidence. 
(Alienation  of  affections.  Declarations  of  wife,  before 
guilty  intimacy,  as  to  her  feelings  towards  both  her  hus- 
band and  defendant,  admitted.) — Roesner  v.  Darrah,  65 
Kan.  599,  70  P.   597. 

Letters  written  by  husband  to  wife  during  coverture 
admissible  to  show  affection. — Beach  v.  Brown,  20  Wash. 
266,  55  P.  46. 


300  STATEMENTS    OF   MENTAL   CONDITION 

Declarations  of  affection  maCe  by  husband  a  long  time 
after  separation  inadmissible. — Stanley  v.  Stanley,  27 
Wash.  570,  68  P.  187. 

Statements   Showing    Intent,    Design    or   Plan. 
When  the  existence  of  a  specific  design  or  plan  is  rele- 
vant to  show  that  a  thing  was  probably  done  as  planned, 
the  statements  of  the  actor  expressing  his  intent  to  do 
such  act  are  relevant: 

California:  Kyle  v.  Craig,  125  Cal.  107,  57  P.  791 
(grantor's  declarations  showing  his  intention  to  give  a 
deed  upon  a  certain  condition  in  view  of  death) ;  Rogers 
v.  Manhattan  Life  Ins.  Co.,  138  Cal.  285,  71  P.  348  (letter 
of  an  insured  to  the  captain  of  the  vessel  on  which  he  was 
a  passenger,  expressing  an  intention  to  commit  suicide). 
Colorado:  Denver  &  Rio  G.  R.  Co.  v.  Spencer,  27  Colo. 
313,  61  P.  606  (agreement  of  deceased  to  meet  person  at 
train  admitted  to  show  that  he  was  lawfully  on  premises). 
Texas:  Hamby  v.  State,  36  Tex.  523  (declaration  of  de- 
ceased that  he  was  looking  for  defendant  who  had  taken 
his  horse). 

Utah:  State  v.  Mortensen,  26  Utah  312,  73  P.  562  (state- 
ment of  deceased  after  supper  that  he  was  going  to  de- 
fendant's for  a  few  minutes  to  collect  a  bill). 
Washington:  State  v.  Power,  24  Wash.  34,  63  P.  1112 
(manslaughter  in  abortion;  that  she  was  in  trouble  and 
was  going  to  Spokane  to  see  Dr.  Power). 

Declarations  of  an  insured  showing  that  he  contem- 
plated suicide  are  inadmissible. — Jenkin  v.  Pacific  Mut. 
Life  Ins.  Co.,  131  Cal.  121,  63  P.  180;  Klein  v.  Knights  and 
Ladies  of  Security,  87  Wash.  179,  151  P.  241. 
Arkansas.  In  case  of  the  bankrupt,  the  declaration  which 
he  makes  at  the  time  of  leaving  his  house,  of  his  inten- 
tion of  so  doing,  is  founded  not  upon  his  character  for 
veracity,  but  on  the  presumption  arising  from  experience 
that  where  a  man  does  an  act,  his  cotemporary  declara- 
tion accords  with  his  real  intention,  unless  there  be  some 
reason  for  misinterpreting  his  real  intention. — Cornelius 
v.   State,  12  Ark.  806. 

"The  declarations  of  the  defendant  as  to  his  intent  or 
object  in  killing  the  cow  do  not  depend  in  the  slightest 


STATEMENTS   OF   MENTAL   CONDITION  301 

degree  upon  the  credit  that  might  be  awarded  to  him  as 
a  man,  but  solely  and  exclusively  upon  the  presumption 
arising  from  experience  that  his  cotemporary  declara- 
tions accord  with  his  real  intentions." — Cornelius  v. 
State,  12  Ark.  805. 

Colorado.  Where  a  person  was  killed  at  a  depot,  a  con- 
versation between  deceased  and  his  daughter-in-law  a  few 
days  before,  in  which  he  arranged  to  meet  her  there  at 
that  time,  is  admissible. — Denver  &  Rio  G.  R.  Co.  v. 
Spencer,   25  Colo.   9,   52  P.   211. 

Declarations  expressing  an  intent  to  commit  suicide, 
completely  separated  from  the  final  act  by  lapse  of  time, 
and  not  part  of  the  res  gestae,  inadmissible. — Ross-Lewin 
v.  Germania  Life  Ins.  Co.,  20  Colo.  App.  262,  78  P.  305. 
Kansas.  Declarations  of  either  grantor  or  grantee  tend- 
ing to  show  a  common  design  to  defraud  creditors  are  ad- 
missible.— Chicago  Lumber  Co.  v.  Cox,  94  Kan.  563,  147 
P.   67. 

Montana.  "When  it  is  necessary  to  find  who  brought  on 
a  quarrel  resulting  in  death,  uncommunicated  threats  of 
deceased  are  admissible. — State  v.  Jones,  48  Mont.  505, 
139   P.   441. 

North  Dakota.  A  note  found  in  a  room  where  a  dead 
body  was  discovered,  containing  directions  as  to  the 
disposition  of  the  body,  is  relevant  as  bearing  on  the 
manner  of  death. — Clemens  v.  Royal  Neighbors  of  Amer- 
ica,  14  N.  D.  116,  103  N.  W.  402. 

Oregon.  The  declarations  of  a  daughter  made  to  a  notary 
public  at  the  time  of  executing  a  conveyance  to  her 
parents  admissible  to  show  an  intent  to  hinder,  delay 
and  defraud  her  creditors. — Robson  v.  Hamilton,  41  Or. 
239,  69  P.  651. 

Letters  of  a  debtor  to  her  creditor  admitted  to  show 
the  intent  with  which  she  subsequently  made  a  convey- 
ance of  her  property  to  her  parents. — Robson  v.  Hamilton, 
41  Or.  239,  69  P.  651. 

Texas.  Declarations  and  conversations  of  a  person  when 
leaving  his  home,  to  prove  that  he  intended  to  return, 
and   to   repel   the    presumption   arising   from    his   leaving 


302         STATEMENTS   OF  MENTAL  CONDITION 

that  it  was  an  abandonment  of  his  settlement  are  inad- 
missible.— Garvin's   Adm'rs.   v.   Stover,   17   Tex.   292. 

Declarations  (of  an  intention  to  return  to  his  native 
country)  are  to  be  credited  as  the  index  of  his  intention 
when  not  unreasonable  in  themselves,  not  inconsistent 
with  other  facts  in  the  case,  and  not  under  circumstances 
creating  suspicion  of  insincerity. — Blumer,  Ex  parte,  27 
Tex.  743. 

Declarations  of  a  landowner,  made  at  the  time  of  making 
a  survey,  that  plaintiffs  were  to  have  the  land,  are  relevant 
to  show  Intent  at  time  of  putting  them  in  possession. — 
Shannon  v.  Marchbanks,  35  Tex.  Civ.  App.  615,  80  S. 
W.  860. 

Where  an  issue  in  a  murder  trial  is  who  began  the 
difficulty,  and  there  was  evidence  that  deceased  ap- 
proached defendant  with  his  hand  in  a  pocket  where  he 
usually  carried  a  pistol,  his  uncommunicated  threats  are 
admissible.— Kirklin  v.  State,  73  Tex.  Cr.  R.  251,  164  S. 
W.  1016. 

Washington.  Letters  and  conversations  of  a  son  express- 
ing an  intention  of  contributing  his  earnings  to  them  are 
admissible  to  show  such  intent. — Dean  v.  Oregon  R.  & 
Nav.  Co.,  44  Wash.  564,  87  P.  824. 

When  the  character  of  a  transaction  depends  on  the 
intention  of  a  party  he  may  introduce  in  evidence  a  let- 
ter by  him  expressive  of  that  intention. — Malloy  v.  Drum- 
heller,  68  Wash.  106,  122  P.  1005. 

STATEMENTS   OF   PAIN   AND  SUFFERING. 
In   General. 

Statements  of  pain  after  the  injury  are  admissible: 
Nebraska:     Ward   v.   Aetna   Life   Ins.    Co.,    82   Neb.    499, 
118  N.  W.  70  (complaints  by  locomotive  fireman  from  time 
of  injury  during  a  period  of  several  months). 
Texas:     South  Texas  Telephone  Co.  v.  Tabb,  52  Tex.  Civ. 
App.  213,  114  S.  W.  448  (complaint  to  her  father  the  next 
day  that  the  pain  commenced  where  the  neck  joined  the 
head  and  went  to  the  front  over  one  of  the  eyes). 
Kansas.     Preliminary   evidence   necessary    before    admis- 
sion of  expressions  of  present  pain. — St.   Louis  &   S.   F. 
R.  Co.  v.  Chaney,  77  Kan.  276,  94  P.  126. 


STATEMENTS    OF   MENTAL   CONDITION  303 

Nebraska.  Plaintiff,  injured  by  being  thrown  from  a 
street  car  while  attempting  to  board  it,  may  testify  that 
after  re-entering  the  car  the  conductor  asked  her  if  she 
was  hurt,  and  she  replied  that  she  was. — Nixon  v.  Omaha 
&  Council  Bluffs  St.  Ry.  Co.,  79  Neb.  550,  113  N.  W.  117. 

Texas.  The  mere  descriptive  statements  of  a  sick  or  in- 
jured person  as  to  the  subjective  symptoms  and  effects  and 
causes  of  his  trouble  can  be  admitted  in  evidence  only 
when  made  (1)  to  a  medical  attendant  or  nurse  for  pur- 
poses of  medical  treatment;  or,  (2)  they  must  relate  to 
existing  pain  or  other  symptoms  from  which  the  person 
is  then  suffering;  and,  (3)  such  statements  or  explanatory 
symptoms  are  admissible  when  the  medical  attendant  or 
nurse  is  called  upon  to  give  a  conclusion  based  in  part 
upon  them  and  they  are  explanatory  of  the  conclusion  of 
such  medical  attendant  or  nurse.  (Statements  to  a  layman 
complaining  of  severe  pains  in  his  side,  made  at  different 
times,  inadmissible.) — Runnells  v.  Pecos  &  N.  T.  Ry.  Co., 
49  Tex.  Civ.  App.  150,  107  S.  W.  647. 

Wyoming.  A  physician  may  testify  to  a  statement  or 
narrative  given  by  a  patient  in  relation  to  his  condition, 
symptoms,  sensations  and  feelings,  both  past  and  present, 
when  such  statements  were  received  during  an  examina- 
tion and  were  necessary  to  enable  him  to  give  his  opinion 
as  an  expert  witness;  but  such  evidence  is  admissible  for 
the  purpose  of  affording  the  jury  the  means  of  determining 
the  weight  to  be  given  to  the  opinion  of  the  physician,  but 
not  as  evidence  tending  to  prove  the  actual  condition  of 
plaintiff  at  tbie  time  of  which  he  spoke. — Acme  Cement 
Piaster  C).   v.    Wostman.   20   Wyo.  43,  22  P.  89. 

Exclamations   of   Present   Pain. 

Statements  or  involuntary  expressions  of  present  pain 
are  admissible: 

Arkansas:      Prescott  &   N.  W.  R.   Co.  v.  Thomas,    (Ark.), 
167   S.  W.  486   (several  weeks  after  injury). 
Kansas:     Johnson  v.  Powell,  87  Kan.  142,  123  P.  881  (that 
she  was  suffering  great  pain  and  could  not  use  her  finger 
at   all). 


304  STATEMENTS   OF   MENTAL   CONDITION 

Nebraska:     Albrecht  v.  Morris,  91  Neb.  442,  136  N.  W.  48 

(on  examination  by  physician,   statements  as  to  location 

of  pain,  tending  to  show  extent  of  the  injury). 

Texas:     Texas  Traction  Co.  v.  Morrow,   (Tex.  Civ.  App.), 

145    S.   W.    1069    (expressions   of   husband  to   wife   as   to 

pain). 

Declarations  of  present  pain,  though  made  at  a  consid- 
erable time  after  an  accident,  are  admissible: 

California:     Dow  v.  City  of  Oroville,  22  Cal.  App.  215,  134 
P.  197   (that  he  was  still  suffering  pain). 
Colorado:     Colorado     Springs     &     Interurban    Ry.    Co.   v. 
Allen,   48  Colo.  4,  108  P.  990   (declarations  made  several 
months  after  plaintiff  was  injured). 

Kansas:  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Johns,  36  Kan. 
769,  14  P.  237  (complaints  of  misery  and  suffering  made  at 
different  times,  to  neighbor) ;  St.  Louis  &  S.  F.  R.  Co. 
v.  Chaney,  77  Kan.  276,  94  P.  126  (similar  expressions  ex- 
cluded, attending  circumstances  being  held  not  sufficient). 
Oregon:  Vuilleumeier  v.  Oregon  Water  Power  &  Ry.  Co., 
55  Or.  129,  105  P.  706  (statements  to  physician  in  answer 
to  question  whether  she  was  still  suffering  pain,  six  weeks 
after  accident). 

Texas:  Dublin  Gas  &  Elec.  Co.  v.  Frazier,  46  Tex.  Civ. 
App.  288,  103  S.  W.  197  (to  physician,  in  reply  to  question 
as  to  what  hurt  her  the  worst,  several  hours  after  acci- 
dent) ;  St.  Louis  Southwestern  Ry.  Co.  v.  Norwell,  (Tex. 
Civ.  App.),  115  S.  W.  861  (declarations  of  suffering  and 
pain,  while  working  for  another  after  the  accident) ; 
Houston  &  T.  C.  R.  Co.  v.  Parnell,  56  Tex.  Civ.  App.  265, 
120  S.  W.  951  (that  his  side,  back  and  kidneys  hurt  him 
so  that  he  could  not  turn  over) ;  St.  Louis  &  S.  F.  R.  Co. 
v.  Boyer,  44  Tex.  Civ.  App.  311,  97  S.  W.  1070  (that  she 
was  suffering  severely  with  her  head);  Ft.  Worth  &  D. 
C.  Ry.  Co.  v.  Hays,  (Tex.  Civ.  App.),  131  S.  W.  416  (when 
repeated  tests  of  certain  points  on  spine  were  made) ; 
Trinity  &  B.  V.  R.  Co.  v.  Carpenter,  (Tex.  Civ.  App.), 
132  S.  W.  837  (expressions  of  present  pain  .after  the  in- 
jury) ;  St.  Louis  Southwestern  Ry.  Co.  v.  Pruitt,  (Tex.  Civ. 
App.),  157  S.  W.  236  (on  pressure  being  applied  to  his 
spine  by  a  physician). 


STATEMENT   OF  MENTAL  CONDITION  305 

California.  Involuntary  expressions  of  a  person's  present 
pain  and  suffering  are  admissible  as  tending  in  some  de- 
gree to  show  his  physical  condition. — Lange  v.  Schoettler, 
115  Cal.  388,  47  P.  139;  Green  v.  Pacific  Lumber  Co.,  130 
Cal.  435,  62  P.  747. 

Colorado.  Expressions  of  pain  made  by  an  injured  per- 
son immediately  after  the  injury  are  part  of  the  res 
gestae. — Denver  City  Tramway  Co.  v.  Martin,  44  Colo. 
324,  98   P.  836. 

Kansas.  Declarations  of  present  pain  admissible. — St. 
Louis  &  S.  F.  R.  Co.  v.  Burrows,  62  Kan.  89,  61  P.  439. 

Exclamations  of  present  pain  or  suffering,  in  connection 
with  appearance  and  conduct,  admissible. — Federal  Bet- 
terment Co.  v.  Reeves,  77  Kan.  Ill,  93  P.  627. 
Texas.  The  complaint  of  a  patient,  while  being  examined 
by  a  physician,  of  a  "roaring  and  dull  aching  pain  in  the 
head,  more  especially  in  the  back  of  his  head,"  is  ad- 
missible.—Wheeler  v.  Tyler  S.  E.  Ry.  Co.,  91  Tex.  356, 
43  S.  W.  876. 

Exclamations  or  complaints  which  are  the  spontaneous 
manifestations  of  distress  or  pain  or  suffering  are  admis- 
sible as  original  evidence  under  the  ordinary  application 
of  the  rule  of  res  gestae. — Runnells  v.  Pecos  &  N.  T.  Ry. 
Co.,  49  Tex.  Civ.  App.  150,  107  S.  W.  647. 

Complaints  of  one  injured  are  admissible  where  the 
pain  and  suffering  complained  of  are  contemporaneous 
with  the  declaration,  and  they  need  not  be  res  gestae  with 
the  original  injury. — Trinity  &  B.  V.  R.  Co.  v.  Carpenter, 
(Tex.  Civ.  App.),  132  S.  W.  837. 

Statements  of  Past  Pain. 
Declarations  as  to  past  feelings  and  symptoms  which 
are  not  voluntary  expressions  of  present  pain  should  be 
rejected. — Green  v.  Pacific  Lumber  Co.,  130  Cal.  435.  62 
P.  747;  Johnson  v.  Powell,  87  Kan.  142,  123  P.  881. 
Kansas.  Testimony  of  expressions  of  a  natural  and 
spontaneous  character,  indicating  present  bodily  pain,  is 
competent  as  original  evidence,  but  the  declarations  of  an 
injured  party  as  to  his  past  feelings  and  symptoms  and 
which  are  not  voluntary  expressions  of  present  pain  are 
hearsay. — Johnson  v.  Powell,  87  Kan.  142,  123  P.  881. 


306     EVIDENCE  GIVEN  IN  FORMER  PROCEEDING 

Statements  for  Purposes  of  Evidence. 
Texas.  The  bare  statement  that  plaintiff  was  suffering 
from  headache,  made  to  a  physician  who  does  not  treat 
the  patient,  but  who  is  called  to  examine  him  for  the 
sole  purpose  of  testifying  in  the  case,  is -inadmissible. — 
Tyler  S.  E.  R.  Co.  v.  Wheeler,  (Tex.  Civ.  App.),  41  S.  W. 
517. 

Statements  to  physician  as  to  pain  while  under  treat- 
ment are  admissible,  though  made  after  suit  begun,  where 
there  is  no  evidence  that  the  examination  was  made  for 
the  sole  purpose  of  furnishing  the  physician  with  informa- 
tion on  which  to  base  an  opinion. — El  Paso  &  S.  W.  R. 
Co.  v.  Polk,  49  Tex.  Civ.  App.  269,  108  S.  W.  761. 

Article  32.* 
evidence  given  in  former  proceeding  when  relevant. 

Evidence  given  by  a  witness  in  a  previous  ac- 
tion is  relevant  for  the  purpose  of  proving  the 
matter  stated  in  a  subsequent  proceeding,  or  in 
a  later  stage  of  the  same  proceeding,  when  the 
witness  is  dead,  (a)  or  is  mad,(b)  or  so  ill  that 
he  will  probably  never  be  able  to  travel,  (c)  or  is 
kept  out  of  the  way  by  the  adverse  party,  (d)  or 
in  civil,  but  not,  it  seems,  in  criminal  cases,  is  out 
of  the  jurisdiction  of  the  court,  (e)  or,  perhaps, 
in  civil,  but  not  in  criminal,  cases  wnen  he  cannot 
be  found,  (f) 

a  Mayor  of  Doncaster  v.  Day,  3  Tau.  262;  Costigan  v.  Lunt, 
127   Mass.    354. 

b  R.   v.   Eriswell,    3   T.   R.   720. 

c  R.   v.  Hogg,   6  C.  &  P.   176. 

d  R.   v.   Scaife,   17   Q.   B.   238,   243. 

e  Fry  v.  Wood,  1  Atk.  444;  R.  v.  Scaife,  17  Q.  B.  243;  Sulli- 
van v.  State,  6  Tex.  App.  319. 

f  Godbolt,  p.  336,  case  418;  R.  v.  Scaife,  17  Q.  B.  243. 


*  See  Note  at  end  of  Article. 


EVIDENCE  GIVEN  IN  FORMER  PROCEEDING     307 

Provided  in  all  cases — 

(1)  That  the  person  against  whom  the  evi- 
dence is  to  be  given  had  the  right  and  opportunity 
to  cross-examine  the  declarant  when  he  was  ex- 
amined as  a  witness  ;(g) 

(2)  That  the  questions  in  issue  were  substan- 
tially the  same  in  the  first  as  in  the  second  pro- 
ceeding ;(g) 

Provided  also — 

(3)  That  the  proceeding,  if  civil,  was  between 
the  same  parties  or  their  representatives  in  in- 
terest ;(g) 

(4)  That,  in  criminal  cases,  the  same  person 
is  accused  upon  the  same  facts,  (h) 

If  evidence  is  reduced  to  the  form  of  a  deposi- 
tion, the  provisions  of  Article  90  apply  to  the 
proof  of  the  fact  that  it  was  given. 

The  conditions  under  which  depositions  may  be 
used  as  evidence  are  stated  in  Articles  140-142. 

EVIDENCE  GIVEN  AT  FORMER  TRIAL. 
General  Rules  of  Admission. 
The  evidence  of  a  witness  given  on  a  former  action 
between  the  same  parties  involving  the  same  issue  in  a 
court  of  competent  jurisdiction  is  admissible  on  a  subse- 
quent trial  in  behalf  of  either  party  and  upon  proper  proof, 
when  it  is  shown  that  the  witness  who  gave  such  evidence 
is  dead.— Persons  v.  Persons,  12  N.  D.  403,  97  N.  W.  551; 
Texas  &  N.  O.  R.  Co.  v.  Williams,  (Tex.  Civ.  App.),  170 
S.  W.  701. 

Colorado.     Testimony  at  a  coroner's  inquest  of  a  witness 
since  deceased   not  admissible   in  favor  of  defendant  on 


g  Doe  v.  Tatham,  1  A.  &  E.  319;  Doe  v.  Derby,  1  A.  &  E. 
783,   785,    789. 

h  Beeston's  Case,  Dears.  405;  Com.  v.  Reynolds,  122  Mass. 
454. 


308     EVIDENCE  GIVEN  IN  FORMER  PROCEEDING 

trial  for  alleged  negligent  killing,  unless  plaintiff  had  op- 
portunity to  cross-examine. — Jackson  v.  Crilly,  16  Colo. 
103,  26  P.  331. 

Even  in  the  absence  of  statute,  the  testimony  of  a  wit- 
ness at  a  former  trial,  transcribed  by  the  court  stenog- 
rapher and  reporter  who  took  it  down,  may  be  proved  in 
a  subsequent  trial  between  the  same  parties  and  involv- 
ing the  same  issues,  by  introducing  such  report  thereof, 
provided  that  the  witness  is  dead,  insane,  beyond  the 
jurisdiction  of  the  court,  or  is  sick  or  unable  to  testify, 
or  appears  to  have  been  kept  away  by  the  adverse  party. 
—Daniels  v.  Stock,  23  Colo.  App.  529,  130  P.  1031. 
Kansas.  The  testimony  of  a  witness  on  a  former  trial 
as  to  a  transaction  with  a  person  who  has  died  since  such 
trial  is  admissible,  though  the  witness  was  present  in 
court  and  was  disqualified  from  testifying  at  the  second 
trial,  on  account  of  the  death  of  such  person. — New  v. 
Smith,  94  Kan.  6,   145  P.  880. 

Nebraska.  Where  a  guarantor  has  admitted  that  in  a 
former  suit  against  the  maker  he  testified  to  certain 
facts,  it  is  unnecessary  to  introduce  proof  of  such  testi- 
mony.—Lamb  v.  Briggs,  22  Neb.  138,  34  N.  W.  217. 
Texas.  Evidence  of  deceased  plaintiff  in  former  trial 
admitted,  though  defendant  was  not  present  and  was 
served  by  publication. — O'Neill  v.  Brown,  61  Tex.  34. 

Ex  parte  testimony  of  a  bankrupt  taken  before  a  referee 
in  bankruptcy,  inadmissible. — Stone  v.  State,  (Tex.  Civ. 
App.),   132  S.  W.   862. 

Testimony  of  chauffeur  at  inquest  over  the  body  of  a 
woman  killed  in  accident  admissible  only  to  affect  cred- 
ibility.— Texas  Cent.  R.  Co.  v.  Dumas,  (Tex.  Civ.  App.), 
149  S.  W.  543. 

Washington.  Where  both  parties  agreed  to  take  the 
deposition  of  a  witness  who  had  testified  on  a  former 
trial,  his  former  testimony  was  inadmissible,  where  the 
deposition  was  then  in  court. — Kennedy  v.  Canadian  Pac. 
Ry.  Co.,  87  Wash.  134,  151  P.  252. 

Nature  of  Proceeding. 
Colorado.     Evidence   at   former    trial    admissible,   though 
the  court  may  not  have  had  jurisdiction  of  the   subject 
matter,  if  it  had  jurisdiction  of  parties  and  power  to  ad- 


EVIDENCE  GIVEN  IN  FORMER  PROCEEDING     309 

minister  oaths. — Jerome  v.  Bohm,  21  Colo.  322,  40  P.  570. 
Texas.  Findings  at  a  coroner's  inquest,  that  the  deceased 
committed  suicide,  inadmissible. — Boehme  v.  Sovereign 
Camp  of  Woodmen  of  the  World,  36  Tex.  Civ.  App.  501, 
85  S.  W.  444. 

Utah.     Evidence  introduced  before  a  committee  on  privi- 
leges and  elections  of  United  States  Senate  inadmissible. 
—Park's  Estate,  In  re,  29  Utah  257,  81  P.  83. 
Death   or  Absence  of  Witness. 

Where  witness  resides  in  another  state  and  is  not 
present  at  the  second  trial,  though  his  deposition  might 
have  been  taken,  admissible. — Emerson  v.  Burnett,  11 
Colo.  App.  86,  52  P.  752;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Baker,  37  Okl.  48,  130  P.  577. 

Within  the  state,  though  out  of  the  county,  is  not  with- 
out the  jurisdiction  of  the  court  so  as  to  admit  evidence 
given  at  a  former  trial.— Meyer  v.  Roth,  51  Cal.  582; 
Butcher  v.  Vaca  Val.  Res.  Co.,  56  Cal.  598;  Young  v.  Sage, 
42  Neb.  37,  60  N.  W.  313. 

Arkansas.  Beyond  jurisdiction  of  court  or  cannot  be 
found,  admissible. — Vaughan  v.  State,  58  Ark.  370,  24  S. 
W.  889. 

Not  admissible  where  residence  of  witness  outside  the 
state  is  known. — St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Ingram, 
(Ark.),  176  S.  W.  692. 

Kansas.  Evidence  of  an  accomplice  in  prison  not  admis- 
sible, though  he  would  be  incompetent  now  to  testify 
by  deposition  or  otherwise. — State  v.  Conway,  56  Kan. 
682,  44  P.  627. 

Witness  out  of  jurisdiction  of  the  court  and  beyond 
reach  of  its  process,  admissible. — Atchison,  T.  &  S.  F. 
R.  Co.  v.  Osborn,  64  Kan.  187,  67  P.  547. 
Montana.  Where  the  witness  is  out  of  the  jurisdiction 
and  diligence  has  been  used  to  obtain  him  as  a  witness, 
his  testimony  given  at  a  former  trial  is  admissible. — Rey- 
nolds v.  Fitzpatrick,  28  Mont.  170,  72  P.  510. 

A  sufficient  showing  that  witness  was  out  of  the  juris- 
diction was  not  made. — Reynolds  v.  Fitzpatrick,  28  Mont. 
170,  72  P.  510. 

Nebraska.  Where  a  witness  is  shown  to  be  absent  from 
the   state,   his  testimony  given  at  a   former  trial   of  the 


310     EVIDENCE  GIVEN  IN  FORMER  PROCEEDING 

same  cause  is  admissible  if  otherwise  objectionable. — 
Omaha  Street  Ry.  Co.  v.  Elkins,  39  Neb.  480,  58  N.  W. 
164. 

Witness  shown  to  be  absent  from  state. — City  of  Ord 
v.  Nash,  50  Neb.  335,  69  N.  W.  964. 

It  must  be  shown  that  the  party  is  unable  to  secure 
the  attendance  of  the  witness. — Vandewege  v.  Peter,  83 
Neb.  140,  119  N.  W.  226. 

Absence   of  witness  from   state,   and   sheriff   could   not 
find  him,  though  he  would  return  in  three  weeks,  admis- 
sible.—Pike  v.  Hauptman,  83  Neb.  172,  119  N.  W.  231. 
Oklahoma.     Non-resident  of  state,  admissible. — Oklahoma 
Ry.  Co.  v.  Bowles,  30  Okl.  764,  120  P.  1104. 
Oregon.     Evidence   that   about   seven   months   before   the 
trial  the  witness  at  the  former  trial  had  left  for  Alaska 
to  be  gone  two  years,   and   was   afterwards  heard  of  at 
Dawson    City,    was    sufficient   to    admit    the    testimony. — 
Wheeler  v.  McFeron,  38  Or.  105,  62  P.  1015. 
Texas.     Not  admissible  when  witness  is  present  in  court. 
—Missouri,   K.   &  T.   R.   Co.  v.   Nesbit,   43  Tex.   Civ.  App. 
630,  97  S.  W.  825. 

Absence  and  inability  to  locate  witness  shown,  admitted. 
—Boyd  v.  St.  Louis  Southwestern  Ry.  Co.,  101  Tex.  411, 

108  S.  W.  813. 
Admissible,  witness  absent  for  three  years  and  nobody 

knew    where    he   was. — St.    Louis    Southwestern    Ry.    Co. 

v.  Boyd,  56  Tex.  Civ.  App.  282,  119  S.  W.  1154. 

Utah.     Witness  out  of  state  and  not  reached  by  subpoena, 

admissible    under    statute. — Reese   v.    Morgan    Silver-Min. 

Co.,  17  Utah  489,  54  P.  759. 

Identity  of  Parties. 
The  parties  must  be  the   same   as  in  the  former  suit, 

in  order  that  former  testimony   shall   be   admitted. — Mc- 

Tighe  v.  Herman,  42  Ark.  285;  Austin  v.  Dungan,  46  Tex. 

236;   Poorman  v.  Miller,  44  Cal.  269. 

Colorado.     Suit  on  note  by  assignee.     Evidence  in  former 

suit  on  same  note  by  assignor  not  admitted. — Tourtelotte 

v.  Brown,  4  Colo.  App.  377,  36  P.  73. 

Testimony   of   a    deceased    witness    in   a   replevin    suit 

brought  by  plaintiff  against  a  sheriff  is  admissible  against 

the  sureties  on  the  sheriff's  bond  who  bought  the  goods 


EVIDENCE  GIVEN  IN  FORMER  PROCEEDING     311 

at  execution  sale  after  the  sheriff  had  given  a  redelivery 
bond,  and  jplaintiff  sued  the  sureties  in  trover. — Wood- 
worth  v.  Gorsline,  30  Colo.  186,  69  P.  705. 

Deposition  of  the  wife  of  the  maker  of  a  note,  taken  in 
the  matter  of  the  estate  of  her  husband  upon  a  claim 
presented  by  her,  is  inadmissible  in  a  suit  between  sureties 
on  the  note. — Chappell  v.  John,  45  Colo.  45,  99  P.  44. 
Kansas.  Testimony  of  defendants  as  to  ownership  of 
land,  made  in  another  suit  to  which  plaintiff  in  ejectment 
was  not  a  party,  are  not  admissible,  except  as  declara- 
tions binding  on  the  one  who  made  them. — Madden  v. 
Stegman,  88  Kan.  29,  127  P.  524. 

Montana.  Precise  nominal  identity  is  not  necessary. 
(Where  the  parties  were  respectively  a  plaintiff  and  a 
defendant  in  the  former  suit.) — O'Meara  v.  McDermott,  40 
Mont.  38,  104  P.  1049. 

Oklahoma.  Testimony  of  a  witness  since  deceased,  given 
before  a  justice  of  the  peace  on  a  charge  of  felonious  as- 
sault, may  be  used  against  defendant  in  a  civil  suit  against 
him  for  damages  by  the  person  assaulted. — Ray  v.  Hender- 
son,  (Okl.),  151  N.  W.  510. 

Oregon.  Evidence  of  a  deceased  in  a  suit  to  establish 
water  rights,  brought  by  plaintiff  against  another  defend- 
ant, is  not  admissible  in  a  similar  suit  brought  against 
defendants. — Nevada  Ditch  Co.  v.  Canyon  &  Sand  Hollow 
Ditch  Co.,  58  Or.  517,  114  P.  86. 

Texas.  Where  cases  between  different  parties  had  been 
consolidated,  but  one  was  afterwards  dismissed,  any  evi- 
dence taken  therein  was  not  admissible  on  the  trial  of 
the  suit  not  dismissed. — Behan  v.  Long,  10  Tex.  Civ.  App. 
225,  30  S.  W.  380. 

In  a  suit  of  trespass  to  try  title,  evidence  in  a  former 
action  against  a  different  defendant  is  inadmissible, 
though  the  witnesses  are  dead. — Ellis  v.  Lebow,  30  Tex. 
Civ.  App.  449,  71  S.  W.  576. 

Testimony  of  a  witness  in  a  suit  against  another  rail- 
road for  damage  done  to  the  same  animals  is  inadmissible. 
—Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Peacock,  (Tex.  Civ.  App.),  128 
S.  W.   463. 


312     EVIDENCE  GIVEN  IN  FORMER  PROCEEDING 

Identity  of  Issues. 
Arkansas.  The  subject  matter  must  be  substantially  the 
same.— McTighe  v.  Herman,  42  Ark.  285. 
Colorado.  In  a  suit  for  services  and  disbursements  in 
the  negotiation  of  certain  land  sales,  testimony  of  a  wit- 
ness in  a  former  suit  between  the  parties  for  an  account- 
ing and  to  annul  a  contract  of  partnership  as  to  such 
land  deals,  is  inadmissible. — Bolles  v.  O'Brien,  59  Colo. 
261,   151  P.  450. 

Montana.  Action  not  between  the  same  parties  nor  re- 
lating to  the  same  subject  matter,  inadmissible.  (Plain- 
tiff suing  defendant  for  damages  for  diversion  of  water  can 
not  introduce  evidence  given  in  another  suit  by  him 
against  another  for  diversion.) — Leggat  v.  Carroll,  30 
Mont.   384,   76   P.   805. 

North  Dakota.  The  evidence  is  admissible  where  the 
issues  are  the  same. — Persons  v.  Persons,  12  N.  D.  403, 
97  N.  W.  551. 

Oregon.  Evidence  of  a  deceased  in  a  suit  brought  by 
plaintiff  to  determine  rights  to  water  as  against  another 
is  inadmissible  against  defendant,  as  the  subject  matter 
is  not  the  same. — Nevada  Ditch  Co.  v.  Canyon  &  S.  H. 
Ditch  Co.,  58  Or.  517,  114  P.  86. 

Preliminary   Showing. 

Whether  proper  showing  of  absence  has  been  made  is 
a  question  for  the  discretion  of  the  court. — Vaughan  v. 
State,  58  Ark.  353,  24  S.  W.  885;  Daniels  v.  Stock,  23  Colo. 
App.  529,  130  P.  1021;  St.  Louis  Southwestern  Ry.  Co.  v. 
Boyd,  56  Tex.  Civ.  App.  282,  119  S.  W.  1154. 
California.  Subpoena  showing  that  witness  on  former 
trial  cannot  be  found  in  the  county,  and  additional  sub- 
poenas being  issued  to  other  counties,  trial  being  post- 
poned, lays  a  sufficient  foundation. — People  v.  Carty,  77 
Cal.  213,  19  P.  490. 

Colorado.  Testimony  of  absent  witness  may  be  read, 
though  no  diligence  shown  to  procure  his  testimony  for 
the  present  trial. — Emerson  v.  Burnett,  11  Colo.  App.  86, 
52  P.  752. 

That  the  parties  and  issues  were  the  same  in  the  former 
suit  must  be  shown  by  the  introduction  of  the  record  and 
not  by  the  mere  statements  of  counsel  or  the  testimony  of 


EVIDENCE  GIVEN  IN  FORMER  PROCEEDING     313 

the  official  stenographer. — Tritch  v.  Perry,  48  Colo.  339, 
108  P.  981. 

No  effort  to  show  that  the  witness  on  the  former  trial 
was  dead  or  out  of  the  jurisdiction,  renders  the  testimony 
inadmissible.— Bolles  v.  O'Brien,  59  Colo.  261,  151  P.  450. 
Montana.  The  stenographer  must  testify  that  the  tran- 
script of  the  testimony  presented  and  read  in  evidence 
was  a  correct  copy  of  the  testimony  as  actually  given. — 
Reynolds  v.  Fitzpatrick,  20  Mont.  170,  72  P.  510. 

Testimony  of  a  witness  that  he  knew  of  his  own  knowl- 
edge that  a  former  witness  was  out  of  the  state,  and 
naming  his  place  of  residence,  is  sufficient. — Mette  & 
Kanne  Distilling  Co.  v.  Lowrey,  39  Mont.  124,  101  P.  966. 
Texas.  Mere  statement  of  counsel  that  the  witness  was 
absent  though  diligent  search  had  been  made  for  him, 
and  that  his  whereabouts  could  not  be  ascertained,  did 
not  furnish  a  sufficient  basis  to  justify  the  supplying  of 
his  testimony  by  showing  what  he  swore  upon  a  former 
trial.— Houston  &  T.  C.  R.  Co.  v.  Smith,  (Tex.  Civ.  App.), 
51   S.  W.   506. 

Sufficiency  of  preliminary  evidence  rests  largely  in  the 
discretion  of  the  trial  court.  (Absence  for  three  years 
unheard  of.)— St.  Louis  S.  W.  Ry.  Co.  of  Texas  v.  Boyd, 
56  Tex.  Civ.  App.  282,  119  S.  W.  1154. 

Mode  of  Proof  (Stenographer's  Notes). 

The  report  of  the  court  stenographer  is  admissible  to 
show  what  the  former  testimony  was. — Emerson  v.  Bur- 
nett, 11  Colo.  App.  86,  52  P.  752;  Sherman  Gas  &  Elec. 
Co.  v.  Belden,  52  Tex.  Civ.  App.  437,  115  S.  W.  877;  St. 
Louis  Southwestern  Ry.  Co.  v.  Boyd,  56  Tex.  Civ.  App.  282, 
119  S.  W.  1154;  Waggoner  v.  Stead,  (Tex.  Civ.  App.),  138 
S.  W.  219. 

Testimony  at  former  trial  as  transcribed  by  official 
stenographer  admitted. — Daniels  v.  Stock,  23  Colo.  App. 
529,  130  P.  1031;  Beard  v.  Royal  Neighbors  of  America, 
60  Or.  41,  118  P.  171. 

Where  the  testimony  of  an  absent  or  deceased  witness 
at  a  former  trial  is  admissible,  the  stenographer's  notes 
made  at  such  trial  may  be  used,  either  by  his  reading 
the  notes  or  a  transcript  thereof  to  refresh  memory,  or 


314    EVIDENCE  GIVEN  IN  FORMER  PROCEEDING 

the  transcript  may  be  read  in  evidence  when  duly  certi- 
fied as  required  by  statute: 

California:  People  v.  Carty,  77  Cal.  213,  19  P.  490  (certifi- 
cate of  stenographer  held  insufficient  in  not  stating  notes 
to  be  correct) ;  Id.  (he  may  use  notes  to  refresh  memory, 
and  so  testify);  People  v.  Lem  You,  97  Cal.  224,  32  P.  11 
(same). 

Colorado:  Williams  v.  Sleepy  Hollow  Min.  Co.,  37  Colo. 
62,  86  P.  337  (transcript  inadmissible,  where  no  proof  that 
testimony  was  correctly  taken,  or  that  the  paper  offered 
was  a  correct  copy  of  the  testimony  as  actually  given, 
other  than  the  certificate  of  the  stenographer). 
Kansas:  Wright  v.  Wright,  58  Kan.  525,  50  P.  444  (offi- 
cial stenographer  may  read  the  testimony  from  his  notes, 
though  having  no  independent  recollection) ;  Robbins  v. 
Barton,  9  Kan.  App.  558,  58  P.  279  (the  certificate  of 
stenographer  whose  term  had  expired  not  sufficient  to 
admit,  she  not  testifying) ;  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Osborn,  64  Kan.  187,  67  P.  547  (former  evidence  ad- 
missible if  taken  and  preserved  by  official  stenographer, 
as  required  by  law) ;  Smith  v.  Sculley,  66  Kan.  139,  71  P. 
249  (official  stenographer  may  read  from  his  notes) ;  Wil- 
moth  v.  Wheaton,  81  Kan.  29,  105  P.  39  (may  read  his 
notes,  instead  of  having  a  certified  transcript  read,  as 
provided   by  statute). 

Montana:  Reynolds  v.  Fitzpatrick,  28  Mont.  170,  72  P. 
510  (he  must  testify  that  transcript  of  notes  was  correct 
copy  of  testimony  as  actually  given) ;  Pew  v.  Johnson, 
35  Mont.  173,  88  P.  770  (notes  inadmissible  when  he  also 
was  dead,  and  no  one  found  who  could  read  the  notes 
or  certify  as  to  correctness  of  transcript). 
Nevada:  City  of  Ord.  v.  Nash,  50  Neb.  335,  69  N.  W.  964 
(where  witness  testified  at  two  former  trials,  and  notes 
of  stenographer  at  second  trial  were  destroyed,  testimony 
of  witness  on  first  trial  was  received);  Jordan  v.  Howe, 
4  Neb.  (Unof.)  667,  95  N.  W.  853  (transcript  inadmissible, 
though  accompanied  by  certificate  of  correctness,  no 
statutory  provision  therefor). 

Oregon:  Beard  v.  Royal  Neighbors  of  America,  60  Or. 
41,  118  P.  171  (testimony  as  transcribed  and  certified  by 
official  stenographer,  according  to  statute,  may  be  used). 


EVIDENCE  GIVEN  IN  FORMER  PROCEEDING     315 

South  Dakota:     Merchants'  Nat.  Bank  v.  Stebbins,  10  S.  D. 

466,  74  N.  W.  199   (transcript  duly  certified). 

Texas:     Cooper  v.  Ford,  29  Tex.  Civ.  App.  253,  69  S.  W. 

487     (transcript    of  notes  properly  verified) ;     Wiener    v. 

Zweib,    (Tex.   Civ.   App.),   128   S.   W.   699    (stenographer's 

report,  accompanied   by  testimony  that  it  was  a  correct 

transcript  of  the  shorthand  notes  taken  at  trial). 

Utah:     Reese  v.  Morgan  Silver-Min.  Co.,  17  Utah  489,  54 

P.    759    (admissible,    if   taken    and    preserved    by   official 

stenographer,  as  required  by  law). 

Washington:     Kellogg  v.   Scheuerman,   18   Wash.   293,   51 

P.   344    (notes  not  admissible  as  such,  but  may  be  used 

by  stenographer  to  refresh  memory). 

Texas.     It  must  be  shown  that  a  stenographer's  transcript 

is    a    correct    representation    of   the    testimony   before    it 

can  be  read. — Combest  v.  Wall,    (Tex.  Civ.  App.),   115  S. 

W.   354. 

Mode  of  Proof  (Memory  of  Hearers). 
The  testimony  may  be  given  by  anyone  who  heard  it. 
—Solomon  R.  Co.  v.  Jones,  34  Kan.  443,  8  P.  730;  German 
Nat.  Bank  v.  Leonard,  40  Neb.  676,  59  N.  W.  107;  Thur- 
mond v.  Trammell,  28  Tex.  371,  91  Am.  Dec.  321. 
California.  The  fact  that  evidence  of  a  deceased  witness 
at  a  former  trial  was  taken  down  by  the  official  reporter 
in  shorthand  and  had  been  transcribed  into  long  hand  does 
not  exclude  oral  evidence  by  persons  testifying  from 
memory  alone.— Meyer  v.  Foster,  147  Cal.  166,  81  P.  402. 
Kansas.  The  substance  of  the  testimony  of  a  deceased 
witness  may  be  given  by  anyone  who  heard  and  can  re- 
member the  evidence. — Gannon  v.  Stevens,  13  Kan.  447; 
Solomon  R.  Co.  v.  Jones,  34  Kan.  443,  8  P.  730. 
Nebraska.  An  attorney  who  attended  the  former  trial 
and  took  notes  of  part  of  the  testimony  is  not  competent, 
where  he  does  not  remember  substantially  all  the  wit- 
ness testified  to. — Vandewege  v.  Peter,  83  Neb.  140,  119 
N.  W.  226. 

Mode  of  Proof  (Testimony  Preserved  for  Use  on  Appeal). 
Colorado.  Testimony  preserved  by  bill  of  exceptions  may 
be  used. — Rico  Reduction  &  Min.  Co.  v.  Musgrave,  14 
Colo.  79,  23  P.  458;  Ross-Lewin  v.  Germania  Life  Ins.  Co.. 
30  Colo.   262,  78   P.   305. 


316     EVIDENCE  GIVEN  IN  FORMER  PROCEEDING 

Oklahoma.  Where  witness  resides  in  another  state  and 
is  not  present  at  the  trial,  testimony  taken  down  at  former 
trial  by  official  stenographer  and  preserved  by  bill  of 
exceptions  on  appeal  is  admissible. — Atchison,  T.  &  S. 
F.  R.  Co.  v.  Baker,  37  Okl.  48,  130  P.  577. 
Texas.  Agreed  statement  of  facts,  for  use  on  appeal,  not 
sufficient.— Houston  &  T.  C.  Ry.  Co.  v.  Smith, .  (Tex.  Civ. 
App.),  51  S.  W.  506. 

Certified  copy  of  statement  of  facts,  prepared  for  use 
on  former  appeal,  inadmissible  to  show  testimony  of  wit- 
ness who  had  died,  where  there  was  no  evidence  that  the 
testimony  copied  into  such  statement  of  facts  was  a  cor- 
rect reproduction  of  the  testimony  as  taken  down  by  him 
—Texas  &  N.  O.  Ry.  Co.  v.  Williams,  (Tex.  Civ.  App.), 
178    S.   W.   701. 

Washington.  Certificate  rf  the  evidence  by  the  judge,  to 
be  used  on  appeal,  may,  without  recertification,  be  used  in 
subsequent  trial. — Knutson  v.  Moe  Bros.,  72  Wash.  290, 
130  P.  347. 


NOTE   XXII. 
(To   Article    32.) 

See  also  [3  Wigmore  Ev„  §§  1666-1669];  1  Ph.  Ev.  306-308; 
T.   E.   ss.   434-447;   Buller,   N.   P.   238,   and  following. 

In  reference  to  this  subject  it  has  been  asked  whether  this 
principle  applies  indiscriminately  to  all  kinds  of  evidence  in 
all  cases.  Suppose  a  man  were  to  be  tried  twice  upon  the  same 
facts — e.  g.  for  robbery  after  an  acquittal  for  murder,  and 
suppose  that  in  the  interval  between  the  two  trials  an  im- 
portant witness  who  had  not  been  called  before  the  magis- 
trates were  to  die,  might  his  eviXlence  be  read  on  the  second 
trial  from  a  reporter's  shorthand  notes?  This  case  might 
easily  have  occurred  if  Orton  had  been  put  on  his  trial  for 
forgery  as  well  as  for  perjury.  T  shoul  1  be  disposed  to  think 
on  principle  that  such  evideno  would  be  admissible,  though 
I  cannot  cite  any  authority  on  the  subject.  The  common 
law  principle  on  which  depositions  taken  before  magistrates 
and  in  chancery  proceedings  were  admitted  seems  to  cover 
the   case. 


RECITALS   OF   PUBLIC   FACTS  317 


SECTION  II. 

STATEMENTS  IN  BOOKS,  DOCUMENTS  AND  REC- 
ORDS, WHEN  RELEVANT. 

Article  33. 
recitals  of  public  facts  ix  statutes  and  proclamations. 

When  any  act  of  State  or  any  fact  of  a  public 
nature  is  in  issue  or  is  or  is  deemed  to  be  relevant 
to  the  issue,  any  statement  of  it  made  in  a  re- 
cital contained  in  any  public  Act  of  Parliament,  or 
in  any  Royal  proclamation  or  speech  of  the  Sover- 
eign in  opening  Parliament,  or  in  any  address  to 
the  Crown  of  either  House  of  Parliament,  is 
deemed  to  be  a  relevant  fact,  (a) 

RECITALS  OF  PUBLIC  FACTS. 
Arkansas.  The  record  of  pardons  by  the  governor  show- 
ing the  pardon  of  a  person  from  the  consequences  of  his 
sentence  for  killing  another  is  not  admissible  in  an 
action  to  recover  for  the  accidental  death  of  such  de- 
ceased.— Mason's  Fraternal  Ass'n  v.  Riley,  65  Ark.  261, 
45  S.  W.  684. 

Georgia.  Recitals  in  the  preamble  of  an  act  that  a  county 
site  had  been  actually  and  permanently  located  pursuant 
to  the  provisions  of  a  former  act  are  not  conclusive  upon 
the  courts  as  to  the  fact  recited. — Mitchell  v.  Lasseter, 
114  Ga.  275,  40  S.  E.  287. 


a  [The  following  is  more  applicable  to  the  United  States: 
When  any  act  of  state  or  any  fact  of  a  public  nature  is  in 
issue,  or  is  or  is  deemed  to  be  relevant  to  the  issue,  any 
statement  of  it  made  in  a  recital  contained  in  any  public  act, 
or  in  any  proclamation  of  the  executive,  or  in  state  papers 
published  by  authority  of  Congress,  is  deemed  to  be  rele- 
vant..] 

1    R.  v.  Francklin,  17  S.  T.  636;  R.  v.  Sutton,  4   M.  &  5 
[3   Wigmore   Ev.,   §    1662.] 


318  RECITALS   OF   PUBLIC   FACTS 

Louisiana.  The  American  State  Papers,  published  "by 
order  of  Congress,  and  the  copies  which  they  contain  of 
legislative  and  executive  documents,  are  admissible.  (To 
show  title  in  a  transferee  of  land  from  the  government.) — 
Clemens  v.  Meyer,  44  La.  Ann.  390,  10  So.  797. 
Massachusetts.  The  general  order  of  the  governor  was 
competent  evidence  of  the  call  for  troops  under  the  acts 
of  Congress  and  the  assignment  of  its  quota  to  defendant 
town. — Inhabitants  of  Hanson  v.  Inhabitants  of  So. 
Scituate,   115  Mass.   336. 

New  York.  A  letter  from  the  English  prime  minister  to 
the  American  minister  at  London,  stating  the  blockade 
of  a  certain  port,  and  printed  in  a  pamphlet  transmitted 
to  Congress  by  the  President,  is  evidence  of  the  fact 
of  the  blockade  of  such  port. — Radcliff  v.  United  Ins.  Co., 
7  Johns.  38. 

Recitals  in  a  statute  that  the  Commissioners  of  For- 
feitures had  sold  under  forfeiture  certain  lands  which 
of  right  belonged  to  a  certain  named  other  person  are 
admissible  to  prove  such  ownership. — McKinnon  v.  Bliss, 
21  N.  Y.  206. 

Oklahoma.  Copies  of  the  final  rolls  of  the  citizens  and 
freedmen  of  the  Five  Civilized  Tribes,  prepared  by  the 
Commission  and  approved  by  the  Secretary  of  the  In- 
terior, printed  under  authority  of  Congress,  are  admissible, 
and  conclusive  of  the  quantum  of  Indian  blood  of  any  en- 
rolled citizen  of  such  Tribes,  not  for  the  purpose  of  prov- 
ing that  fact,  but  for  the  purpose  of  fixing  the  status  of 
the  Indian's  allotment,  and  the  capacity  of  the  allottee 
to  alienate  the  same. — Lawless  v.  Raddis,  36  Old.  616,  129 
P.  711. 

United  States.  Communications  between  high  civil  and 
military  officers  of  the  Confederate  states,  preserved  in 
the  Confederate  archives  office,  may  be  used  as  evidence 
to  show  that  the  Confederate  authorities  did  not  obtain 
possession  of  a  certain  vessel  by  capture  or  by  other 
forcible  and  compulsory  appropriation. — Oakes  v.  United 
States,  174  U.  S.  778,  19  Sup.  Ct.  864,  43  L.  Ed.  1169. 
Federal.  Proclamation  of  a  mayor  calling  for  troops  to 
suppress  a  riot  is  admissible  to  prove  the  existence  of  a 
mob  or  riot,  in  an  action  on  account  of  property  destroyed 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  319 

thereby. — City  of  Chicago  v.   Pennsylvania   Co.,   119   Fed. 

497. 

England.     Recitals  in  an  act  that  a  certain  highway  was 

in  a  named  township  were  not  conclusive. — Reg.  v.  Haugh- 

ton,  1  El.  &  Bl.  501. 

Article  34. 

relevancy   of  entry   in  pcblic  record  made  in   perform-* 
ance  of  duty. 

An  entry  in  any  record,  official  book,  or  register 
kept  in  any  of  Her  Majesty's  dominions  or  at  sea, 
or  in  any  foreign  country,  stating,  for  the  purpose 
of  being  referred  to  by  the  public,  a  fact  in  issue 
or  relevant  or  deemed  to  be  relevant  thereto,  and 
made  in  proper  time  by  any  person  in  the  dis- 
charge of  any  duty  imposed  upon  him  by  the  law 
of  the  place  in  which  such  record,  book  or  register 
is  kept,  is  itself  deemed  to  be  a  relevant  fact,  (a) 

OFFICIAL   REGISTERS   AND   RECORDS. 
In    General. 

Various  registers  and  records  made  in  the  performance  of 
duty  by  public  officers  or  others  under  duties  enjoined  by  law 
are  expressly  made  admissible  by  statute.  3  Wigmore  Ev., 
§    1639. 

"It  is  clear  that  no  express  statute  or  regulation  is  needed 
t'.r  creating  the  authority  <>r  duty  to  make  the  statement 
(by  officers  or  those  having  a  public  duty).  The  existence 
of  the  duty,  and  not  the  source  of  its  creation,  is  the  sanc- 
tioning circumstance,  Not  all,  nor  the  greater  part,  of  an 
officer's  conceded  duties  are  expressly  laid  upon  him  by  writ- 
ten law.  They  may  arise  from  the  oral  and  casual  directions 
of  a  superior,  or  from  the  functions  necessarily  inherent  In 
the  office.  Whore  the  nature  of  the  office  fairly  requires  or 
renders  appropriate  the  making  and  recording  of  a  specific 
.statement,  that  statement  is  to  be  regarded  as  made  under 
. .ili.ja.1  duty."      3  Wigmore  Ev.,   §   1633. 

a  Sturla  v.  Freccia,  L.  R.  5  App.  Ga.  623;  see  especially  p. 
633-634  and  643-644.  T.  E.  (from  Greenleaf)  ss.  1429,  1432. 
See  also  Queen's  Proctor  v.  Fry,  L.  R.  4  P.  D.  230.  [3  Wig- 
more Ev.,    §    1639  et  seq.] 


320     RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

Entries  in  public  or  official  books  or  records,  made  in 
the  performance  of  his  duty  by  a  public  officer  of  the 
state,  or  by  any  other  person  in  the  performance  of  a 
duty  specially  enjoined  by  law,  are  prima  facie  evidence 
of  the  facts  therein  stated: 

Idaho:     Black   Canyon   Irr.    Dlst.   v.    Marple,    19    Ida.    176, 
112  P.  766   (order  calling  special  meeting  of  county  com- 
missioners entered  in  minutes  by  clerk). 
Kansas:     Williams   v.    Hill,    16   Kan.    23    (record    copy   of 
deed). 

Nevada:  Reno  Brewing  Co.  v.  Packard,  31  Nev.  433,  103 
P.  415   (U.  S.  patent  to  land). 

Oregon:  Stanley  v.  Smith,  15  Or.  505,  16  P.  174  (duly 
recorded  conveyance). 

California.  To  entitle  a  book  to  the  character  of  an 
official  register  it  is  not  necessary  that  it  be  required 
by  an  express  statute  to  be  kept,  nor  that  the  nature  of 
the  office  should  render  the  book  indispensable.  It  is 
sufficient  that  it  is  directed  by  the  proper  officer  to  be 
kept.  (Book  of  accounts  kept  in  the  office  of  an  alcade 
admissible  as  a  register  of  the  acts  of  that  officer.) — 
Kyburg  v.  Perkins,  6  Cal.  675. 

Copy  of  a  vessel  register  of  the  registry  or  transfer 
of  a  vessel,  showing  that  plaintiffs  were  part  owners  of 
the  vessel,  is  not  admissible,  in  the  absence  of  proof  of 
authority  to  make  the  entry. — Moynihan  v.  Drobaz,  124 
Cal.  212,  56  P.  1026. 

Entries  necessary  to  the  conduct  of  the  office  are  ad- 
missible, though  not  required  by  law.— Hesser  v.  Rowley, 
139  Cal.  410,  73  P.  156. 

Idaho.  By  statute,  entries  in  public  or  official  books  or 
records,  made  in  the  performance  of  his  duty  by  a  public 
officer  of  this  state  or  by  any  other  person  in  the  per- 
formance of  a  duty  specially  enjoined  by  law,  are  prima 
facie  evidence  of  the  facts  therein  stated.  (Order  calling 
special  meeting  of  board  of  county  commissioners,  entered 
on  minute  book.) — Black  Canyon  Irr.  Dist.  v.  Marple,  19 
Ida.  176,  112  P.  766. 

Kansas.  Official  statements  in  official  records,  or,  in  the 
absence  of  the  books,  immediate  copies,  duly  verified,  are 
evidence. — Cooper  v.  Armstrong,  4  Kan.  30. 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  321 

To  fix  the  time  of  issuance  of  a  tax  deed  with  reference 
to  the  time  of  the  assignment  of  the  certificate  of  sale, 
a  book  of  tax  sale  certificate  stubs,  purporting  to  show 
the  dates  of  issuance,  found  In  the  county  treasurer's 
vault,  without  further  identification  was  not  admissible. 
—Noble  v.  Douglass,  56  Kan.  92,  42  P.  328. 

Any  book  essential  or  even  convenient  for  the  purposes 
required  by  statute  will  suffice.  (Tax  receipt  stub  book.) 
—Hudson  v.  Herman,  81  Kan.  627,  107  P.  35. 
Oregon.  An  officer  of  a  city  fire  department  may  testify 
that  a  fire  bell  did  not  ring  before  a  certain  hour  on  a 
given  night,  basing  his  knowledge  on  an  automatic  regis- 
ter in  use  by  the  department. — State  v.  McDaniel,  39  Or. 
161,  65  P.  520. 

Records  which  come  within  the  designation  of  "official 
registers"  are  competent  evidence  of  the  facts  properly 
recorded  therein,  although  they  relate  to  matters  not 
within  the  personal  knowledge  of  the  officer  making  them 
(Register  of  death.)— State  v.  McDonald,  55  Or.  419,  104 
P.  967. 

Texas.  Entries  in  the  record  book  of  the  state  controller 
are  admissible  in  evidence,  though  written  in  pencil. — 
Franklin  v.  Tiernan,  56  Tex.   618. 

Washington.  Commitment  papers  in  an  ex  parte  proceed- 
ing under  statute,  received  to  show  that  plaintiff  was  in- 
sane at  the  time.— Roberts  v.  Pacific  Tel.  &  Tel.  Co., 
(Wash.),   160   P.  965. 

Official  registers  are  admissible  In  evidence  of  any 
facts  required  to  be  recorded  in  them,  or  which  occur  in 
the  presence  of  the  registering  officer. — Armstrong  v. 
Modern  Woodmen  of  America,  (Wash.),  160  P.  946. 
United  States.  Such  writings  are  admissible  in  evidence 
on  account  of  their  public  nature,  though  their  authen- 
ticity be  not  confirmed  by  the  usual  tests  of  truth,  namely, 
the  swearing  and  cross-examination  of  the  persons  who 
prepared  them.  They  are  entitled  to  this  extraordinary 
degree  of  confidence  partly  because  they  are  required  by 
law  to  be  kept,  partly  because  their  contents  are  of  public 
interest  and  notoriety,  but  principally  because  they  are 
made  under  the  sanction  of  an  oath  of  office,  or  at  least 
under  that  of  official  duty,  by  accredited  agents  appointed 


322     RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

for  that  purpose.  Moreover,  as  the  facts  stated  in  them 
are  entries  of  a  public  nature,  it  would  often  be  difficult 
to  prove  them  by  means  of  sworn  witnesses. — Gaines  v. 
Relf,  12  How.  (U.  S.)  472,  570. 

Documents  Filed. 
Arkansas.     Poll  books  and  certificates  of  election  officers 
returned  to   county  clerk,   admissible. — Patton  v.   Coates, 
41  Ark.  Ill,  130;   Merritt  v.  Hinton,  55  Ark.  12,  17  S.  W. 
270. 

North  Dakota.  Contract  for  sale  of  bank  stock.  Officers' 
report  to  comptroller  of  currency  incompetent  to  show 
actual  value  of  shares. — Patterson  v.  Plummer,  10  N.  D. 
95,   86  N.  W.   111. 

Texas.  Petition  to  legislature  to  issue  headright  bounty 
and  donation  certificate,  on  file  in  general  land  office,  ad- 
missible.—Bailie  v.  Western  Livestock  Ass'n,  55  Tex.  Civ. 
App.  473,  119  S.  W.  325. 

Reports  and  Maps  of  Surveys. 

Reports  and  maps  of  surveys  by  officials  are  admissible: 
Kansas:  Dent  v.  Simpson,  81  Kan.  217,  105  P.  542  (re- 
port of  survey,   by  county  surveyor). 

Texas:  Myers  v.  Moody,  (Tex.  Civ.  App.),  122  S.  W.  920 
(sketches  and  plats  made  from  maps  in  general  land 
office);  Finberg  v.  Gilbert,  (Tex.  Civ.  App.),  124  S.  W. 
979  (maps,  and  sketches  therefrom,  in  use  in  general 
land  office). 

Wyoming:  Bd.  Com'rs  Sheridan  County  v.  Patrick,  18 
Wyo.  130,  107  P.  748  (field  notes  and  plat  of  survey  show- 
ing highway,  on  record  in  county  recorder's  office). 
Arizona.  A  map  made  by  order  of  a  military  governor, 
defining  the  limits  of  water  privileges,  is  inadmissible. — 
Dalton  v.  Rentaria,  2  Ariz.  275,  15  P.  37. 
California.  Where  a  deed  refers  to  a  certain  map  duly 
recorded  for  description,  no  other  map  is  admissible. — 
Caldwell  v.  Center,  30  Cal.  539. 

A  map  recorded  in  the  recorder's  office  in  pencil,  is 
not  recorded  within  the  spirit  and  meaning  of  the  re- 
cording act.— Caldwell  v.  Center,  30  Cal.  539. 

It  is  not  necessary  that  the  map  of  an  "addition"  in  the 
county  recorder's  office  be  acknowledged. — Colton  Land 
&  Water  Co.  v.  Swartz,  99  Cal.  278,  33  P.  878. 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  323 

Portion  of  a  map  of  a  military  reservation  in  records 
of  war  department,  admissible. — Galvin  v.  Palmer,  113 
Cal.  46,  45  P.  172. 

A  map  prepared  by  draughtsmen  who  have  died,  and 
used  by  surveyors  for  many  years,  is  admissible. — Morcom 
v.  Baiersky,   (Cal.  App.),  117  P.  560. 

Kansas.     Map  of  land  taken  in  condemnation  proceedings, 
made   by   county   surveyor,   admitted. — Chicago,    K.    &    N. 
R.  Co.  v.  Davidson,  49  Kan.  589,  31  P.  131. 
Texas.     Certified   copies  of  maps   from  the  general   land 
office  are  admissible. — Houston  v.  Blythe,  60  Tex.  506. 

Sketches  made  from  field  notes  on  file  in  the  land 
office  are  not  admissible  to  show  location  of  property. — 
Texas  &  P.  Ry.  Co.  v.  Thompson,  65  Tex.  186. 

A  county  map  is  admissible  as  an  archive  of  the  land 
office,  although  it  was  compiled  four  years  after  the  filing 
of  the  suit. — Thatcher  v.  Matthews,  (Tex.  Civ.  App.),  183 
S.  W.  810. 

Wyoming.  Field  notes  and  map  from  county  records  are 
admissible,  though  unsigned  and  unauthenticated,  and  it 
is  not  shown  how  they  came  into  the  clerk's  office. — 
Bd.  of  Com'rs  of  Sheridan  County  v.  Patrick,  18  Wyo. 
130,  107  P.  748. 

Assessor's   Books. 
Arkansas.     In  an  action  for  fraudulently  representing  the 
solvency  of   another,   tax   books   received   in   evidence   to 
show  that  a  person  listed  had  no  property  not  exempt. — 
Winter  v.  Baudel,  30  Ark.  362,  371. 

Tax  assessment  book  not  admissible  as  a  basis  for 
assessing  value  of  right  of  way,  being  made  for  a  different 
purpose,  and  not  a  fair  criterion  of  market  value. — Texas 
&  St.  L.  R.  Co.  v.  Eddy,  42  Ark.   527. 

Assessor's  books  competent  to  show  value  of  personal 
property. — White  v.  Beal  &  Fletcher  Grocer  Co.,  65  Ark. 
278,  45  S.  W.  1060. 

Tax  schedule  of  cattle  made  by  defendant's  agent  at 
his  request  relevant  as  an  admission. — Beckwith  v.  Tal- 
bot, 2  Colo.  639,  651. 

Nevada.  Assessor's  books  showing  defendant's  sworn 
valuation  to  assessor  admissible  to  contradict  him. — Vir- 
ginia &  T.  R.  Co.  v.  Henry,  8  Nev.  165,  174. 


324     RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

Oregon.  Where  plaintiff  claimed  defendant's  insolvency 
as  excuse  for  failure  to  issue  execution  for  more  than 
twenty  years,  defendant  could  in  rebuttal  of  presumption 
of  insolvency  introduce  assessment  rolls  showing  property 
assessed  to  him  as  reputed  owner. — Beekman  v.  Hamlin, 
23  Or.  313,  31  P.  707. 

Texas.  Assessment  books  may  be  introduced  as  an  ad- 
mission of  a  party's  valuation  of  his  property. — Boyer  v. 
St.  Louis,  S.  F.  &  T.  R.  Co.,  97  Tex.  107,  76  S.  W.  441. 
Washington.  Assessment  rolls  unauthenticated  cannot  be 
admitted  in  a  suit  against  a  treasurer  who  used  such  rolls 
and  received  money  upon  them. — City  of  Seattle  v.  Parker, 
13  Wash.  450,  43  P.  369. 

Entries  in   Books  and   On   Documents  of  Officials. 
California.     Entry    of    grant    of   land    made    in    books    of 
alcade's  grants  admissible. — Downer  v.  Smith,  24  Cal.  114. 

A  book  regularly  kept  by  a  sheriff  containing  mem- 
oranda of  receipt  of  writs  of  attachment,  dates  of  returns 
and  proceedings  thereon,  though  not  required  by  statute, 
are  admissible  as  entries  in  the  regular  course  of  business. 
— Hesser  v.  Rowley,  139  Cal.  410,  73  P.  156. 
Nebraska.  The  village  records  of  the  bond  given  by  a 
licensed  saloonkeeper,  kept  by  the  clerk  of  the  village 
and  identified  by  him  as  such  are  competent  prima  facie 
evidence  of  the  execution  and  delivery  of  the  bond. — 
Pilkins  v.  Haus,  87  Neb.  7,  126  N.  W.  864. 
North  Dakota.  Record  of  weight  of  car  of  flax,  taken  by 
a  subordinate  of  the  state  weighmaster's  department  of 
another  state,  in  accordance  with  a  system  in  vogue  in  the 
department  and  in  pursuance  of  statute,  is  admissible. — 
Miller  v.  Northern  Pac.  Ry.  Co.,  18  N.  D.  19,  118  N.  W. 
344. 

City  treasurer's  report  of  data  copied  by  him  from  his 
books  admissible. — City  of  Dickinson  v.  White,  25  N.  D. 
523,  143  S.  W.  754. 

County  treasurer's  books  kept  by  a  deputy  showing 
true  condition  of  cash  belonging  to  the  county  admissible 
in  action  to  compel  restitution  of  county  funds  paid  by 
treasurer  on  private  indebtedness. — Northern  Trust  Co. 
v.  First  Nat.  Bank,  33  N.  D.  1,  156  N.  W.  212. 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  325 

South  Dakota.  Postmaster's  entries  in  a  book  regularly 
kept  showing  advices  received  and  money  orders  drawn 
admissible,  though  no  statute  or  postal  regulation  re- 
quired it— State  v.  Hall,  16  S.  D.  6,  91  N.  W.  325. 

Items  of  fees  received  by  a  register  of  deeds  entered 
with  other  matters  in  a  "reception  book,"  instead  of  in 
a  fee  book,  as  required  by  law,  inadmissible. — Putnam 
v.  Custer  County,  25  S.  D.  542,  127  N.  W.  641. 
Texas.  Indorsement  on  land  grant  on  file  in  general  land 
office,  that  dues  had  been  paid,  admissible. — Davidson  v. 
Ryle,  103  Tex.  209,  124  S.  W.  616. 

Copy  of  memorandum  on  file  in  land  office  showing 
various  steps  as  to  issuance  of  certificate,  admissible. — 
Allen  v.  Clearman,    (Tex.  Civ.  App.),   128  S.  W.   1140. 

In  a  suit  to  recover  costs  wrongfully  collected  by  a  tax 
collector,  official  stubs  of  tax  receipts  found  in  such 
collector's  office,  prepared  under  his  supervision,  showing 
the  amount  of  costs  collected,  are  admissible. — Typer  & 
Knudson  v.  Tom,  (Tex.  Civ.  App.),  132  S.  W.  850. 
Registers  of  Births,   Marriages  and   Deaths. 

The  admission  in  evidence  of  registers  of  births,  mar- 
riages and  deaths  is  in  most  jurisdictions  regulated  by 
statute. — See  3  Wigmore  Ev.,  §  1644. 

Oregon.  A  registry  of  birth,  marriage,  death  or  burial, 
kept  pursuant  to  law,  is  evidence  of  the  main  fact  and  its 
date,  and  of  any  other  facts  which  the  law  directed  the 
officer  to  ascertain  and  record.— State  v.  McDonald,  55 
Or.  419,  104  P.  967. 

Inquests  of  Lunacy  or  Death. 

An  inquisition  of  lunacy,  having  for  its  object  the  ques- 
tion of  commitment,  is  inadmissible  to  prove  insanity. — 
Dewey  v.  Allgire,  37  Neb.  6,  9,  55  N.  W.  276;  Pfiueger  v. 
State,  46  Neb.  493,  64  N.  W.  1094;  Maass  v.  Phillips.  10  Okl. 
302,  61  P.  1057. 

The  verdict  of  a  coroner's  Jury,  that  one  whose  life 
was  insured  committed  suicide,  Is  not  admissible  to  estab- 
lish that  fact  as  a  defense  to  an  action  on  the  policy. — 
Germania  Life  Ins.  Co.  v.  Ross-Lewin,  24  Colo.  43,  51  P. 
488;  Cox  v.  Royal  Tribe  of  Joseph,  42  Or.  365,  71  P.  73; 
Chambers  v.  Modern  Woodmen  of  America,  18  S.  D.  173, 
99  N.  W.  1107. 


326  RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

Records  of  Weather  Bureau. 
The  records  of  the  United  States  weather  bureau  are 
admissible  to  show  the  state  of  the  weather  at  a  certain 
time  and  place: 

Oregon:  Scott  v.  Astoria  R.  Co.,  43  Or.  26,  72  P.  594 
(records  of  daily  rainfall  made  by  witness  and  his  prede- 
cessor);  Willis  v.  Lance,  28  Or.  371,  43  P.  487  (agent  of 
weather  bureau  testifying  to  velocity  of  wind  from  record 
made  by  automatic  register). 

Washington:  Anderson  v.  Hilker,  38  Wash.  632,  80  P. 
848  (good  or  bad  state  of  weather  during  a  certain  period). 

Census. 
Texas.  An  original  census  roll  is  not  admissible  to  show 
that  the  persons  therein  named  were  alive  at  the  time, 
to  show  what  persons  constitute  the  same  family,  and 
their  ages,  or  any  other  matter  necessary  to  show  pedigree 
and  heirship. — Gorham  v.  Settegast,  44  Tex.  Civ.  App. 
254,  98  S.  W.  665. 

Washington.  The  Federal  census  is  competent  evidence 
to  prove  the  population  of  a  county.- — State  v.  Neal,  25 
Wash.  264,  65  P.  188. 

Certificates,  Licenses  and  Receipts. 
Arkansas.  A  certificate  of  officers  of  a  levee  district 
as  to  canvass  of  an  election  and  the  record  thereof  by 
the  board  of  directors,  being  records  authorized  in  the 
line  of  their  duties,  are  evidence  of  the  facts  therein 
stated.— Jonesboro,  L.  C.  &  E.  R.  Co.  v.  Board  of  Directors 
of  St.  Francis  Levee  Dist.,  80  Ark.  316,  97  S.  W.  281. 
Kansas.  The  certificate  of  protest  of  a  check  is  compe- 
tent evidence  of  due  presentment,  and  of  demand  and 
refusal  to  pay. — State  v.  McCormick,  57  Kan.  440,  46  P. 
777. 

Nebraska.  Court  stenographer's  certificate  of  transcript 
of  notes  taken  at  former  trial  admissible  under  statute 
making  competent  in  evidence  duly  certified  copies  of 
records  belonging  to  any  public  office. — Spillman  v.  Flynn, 
19  Neb.   342,  27  N.  W.  224. 

Nevada.  A  certificate  of  the  vice-consul-general  of  the 
United  States  at  London,  under  his  official  seal,  is  prima 
facie  evidence  of  the  execution  of  the  deed. — Evans  v. 
Lee,  11  Nev.  194. 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  327 

North  Dakota.  Receipts  are  competent  to  prove  a  city- 
treasurer's  shortage. — City  of  Dickinson  v.  White,  25  N. 
D.  523,  143  N.  W.  754. 

Oregon.  Certificate  of  marriage  prescribed  by  statute 
to  be  given  by  the  person  solemnizing  the  marriage  to 
each  of  the  parties,  admissible  though  not  constituted  evi- 
dence by  direct  act.— State  v.  Isenhart,  32  Or.  170,  52  P.  569. 
South  Dakota.  A  duplicate  receipt  is  inadmissible. — 
State  v.  Flagstad,  25  S.  D.  337,  126  N.  W.  585. 
Texas.  It  is  only  when  an  act  is  done  by  a  constable  in 
the  performance  of  some  official  duty  imposed  on  him  by 
law  that  his  return  is  sufficient  or  admissible  evidence 
of  his  act.  (Constable's  certificate  of  serving  duplicate 
of  recorded  mechanic's  lien  statement,  inadmissible.) — 
Pool  v.  Wedemeyer,  56  Tex.  289,  299. 

Certified  copies  of  maps  from  the  general  land  office  are 
admissible.— Houston  v.   Blythe,   60  Tex.   506. 

A  certificate  of  registry  of  a  cow  purporting  to  have 
been  made  by  the  secretary  of  a  certain  association,  re- 
ceived by  a  purchaser  from  the  seller  of  the  animal,  is 
inadmissible  to  show  the  fact  of  such  registry,  without 
proof  of  its  genuineness.— Austin  &  N.  W.  R.  Co.  v.  Saun- 
ders,   (Tex.  Civ.  App.),   26   S.  W.   128. 

Where  an  original  marriage  license  and  return  thereon 
Is  offered  as  evidence  to  prove  marriage  in  a  prosecution 
for  bigamy,  it  must  appear  that  it  is  the  original  license 
properly  authenticated. — Harris  v.  State,  (Tex.  Civ.  App.), 
161  S.  W.  125. 

Utah.  Certificate  of  the  record  of  another  state,  with 
the  name  of  the  clerk  signed  by  his  deputy  is  admissible. 
— Steinke  v.  Graves,  16  Utah  293,  52  P.  386. 
Washington.  A  marriage  license  in  which,  by  the  laws 
of  the  state  where  issued,  the  age  of  the  parties  is  re- 
quired to  be  inserted  after  special  inquiry  by  the  recorder, 
is  admissible  to  show  age  of  one  of  the  applicants. — 
Armstrong  v.  Modern  Woodmen  of  America,  (Wash.), 
160  P.  946. 

Legislative  Journals. 
Arkansas.     Senate  journal  admissible  to  show  the  terms 
of  a  report  made  by  the  state  debt  board  to  the  legisla- 


328     RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

ture,  the  original  report  being  lost. — Woodruff  v.  State, 
61  Ark.  157,  32  S.  W.  102. 

Colorado.  Legislative  journals,  when  printed  and  certi- 
fied, are  by  statute  made  prima  facie  evidence  of  the  orig- 
inal records. — Rio  Grande  Sampling  Co.  v.  Catlin,  40  Colo. 
450,  94  P.  323. 

Records  of  Proceedings  of  Public  Board  or  Municipality. 
Arizona.  Minute  entry  of  board  of  county  supervisors  ad- 
missible to  show  employment  of  sheriff  to  serve  certain 
subpoenas. — Yavapai  County  v.  O'Neill,  3  Ariz.  363,  29 
P.  430. 

California.  Record  of  proceedings  of  board  of  county 
supervisors  is  evidence  of  their  acts. — People  v.  Bircham, 
12   Cal.    50. 

Colorado.  The  official  records  of  a  city,  properly  attested 
and  identified,  are  competent  in  behalf  of  the  city  upon 
the  question  of  the  passage  of  one  of  its  ordinances. — 
City  of  Greeley  v.  Hamman,  17  Colo.  30,  28  P.  460. 
Idaho.  The  clerk  of  the  county  commissioners  being  re- 
quired to  enter  on  the  records  an  order  calling  a  special 
meeting,  the  record  is  admissible  after  the  loss  of  the 
original  order. — Black  Canyon  Irr.  Dist.  v.  Marple,  19  Ida. 
176,  112  P.  766. 

PUBLIC  DOCUMENTS. 

Oklahoma.  Printed  copy  of  final  rolls  of  citizens  and 
freedmen  of  the  Five  Civilized  Tribes,  prepared  by  the 
commission  and  approved  by  the  Secretary  of  the  In- 
terior, and  printed  under  authority  of  Congress,  admis- 
sible.—Lawless  v.  Raddis,  36  Okl.  616,  129  P.  711. 
South  Dakota.  Pamphlets  issued  under  direction  of  Con- 
gress relative  to  drainage  investigations  and  printed  by 
the  government  admissible  as  a  public  document. — 
Yankton-Clay  County  Drainage  Ditch,  In  re,  30  S.  D.  79, 
137  N.  W.  608. 

Texas.  Certified  copies  of  classification  of  rates,  etc., 
of  railroad  commission,  admissible  by  statute. — Quanah, 
A.  &  P.  Ry.  Co.  v.  Drummond,  (Tex.  Civ.  App.),  147  S. 
W.  728. 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  329 

CORPORATE  BOOKS  AND  RECORDS. 

California.  Entries  In  stock  book  of  corporation  only 
presumptive  evidence  that  a  person  therein  named  was  a 
stockholder.— Mudgett  v.  Horrell,   33  Cal.  25. 

Minutes  showing  resolution  reciting  salary  of  president 
competent  as  an  admission  by  the  directors. — Smith  v. 
Woodville,  66  Cal.  398,  5  P.  688. 

Records  of  business  transaction  of  corporations  for 
profit,  required  by  statute  to  be  kept  are  admissible  In 
suits  between  strangers. — Hurwitz  v.  Gross,  5  Cal.  App. 
614,  91  P.   109. 

Minutes  of  corporation  only  prima  facie  evidence  of  its 
acts. — Hughes  Mfg.  &  Lumber  Co.  v.  Wilcox,  13  Cal.  App. 
22,  108  P.  871. 

Colorado.  Stock  books  of  a  corporation  are  admissible  to 
show  who  are  stockholders. — Zang  v.  Wyant,  25  Colo.  551, 
56  P.  565. 

Montana.  Minutes  of  stockholders'  meetings  admissible 
when  properly  identified,  but  minutes  consisting  of  sepa- 
rate sheets  of  paper  pinner  to  the  leaves  of  a  record  book, 
not  sufficient. — McConnell  v.  Combination,  30  Mont.  239, 
76  P.  194. 

Nebraska.  Draft  sold  by  a  bank  to  one  accused  of  bur- 
glary of  the  bank  thereafter,  admissible  on  identification 
by  the  cashier.— Morrison  v.  State,  88  Neb.  682,  130  N. 
W.  293. 

Washington.  Corporation's  books  admissible  to  prove 
that  entire  capital  stock  had  been  subscribed. — State  v. 
Superior  Court,  44  Wash.  108,  87  P.  40. 

REGISTERS   OF   CONVEYANCES. 
Admissibility   In   General. 

In  all  the  states  there  are  statutes  providing  for  the  re- 
cording of  certain  Instruments,  of  conveyance  and  others, 
and  declaring  that  such  records,  or,  more  usually  certified 
copies  of  such  records,  shall  be  admitted  in  evidence,  where 
the  original  Is  lost  or  destroyed  or  beyond  the  power  of  the 
party  to  produce.      [2  Wigmore  Ev„  §   1225;   3  Id.   §   1651.] 

"In  every  jurisdiction  where  the  inquiry  came  before  the 
courts,  the  conclusion  was  reached  that  the  register  was  In- 
admissible on  common-law  principles  as  evidence  of  the  exe- 
cution and  contents  of  the  recorded  deed.  In  only  a  few  of 
the  earlier  states  was   this   result  expressly  provided  for  by 


330     RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

statute.  But  as  time  went  on,  and  other  States  were  formed, 
express  statutory  declarations  became  common;  and  now  in 
almost  every  jurisdiction  such  provisions  exist.  For  judicial 
rulings,  then,  the  field. is  now  restricted  chiefly  to  two  classes 
of  questions, — the  kind  of  document  thus  provable  and  the 
regularity  of  the  recording  under  the  statutory  require- 
ments."    3  Wigmore  Ev.,   §   1651. 

California.  Record  of  mining  locations  made  by  custom  in 
recorder's  office  admissible. — Pralus  v.  Pacific  Gold  Co., 
35   Cal.   30. 

Absence  of  the  original  must,  by  statute,  be  accounted 
for,  before  books  of  a  recorder's  office  are  admissible. — 
Brown  v.  Griffith,  70  Cal.  14,  11  P.  500. 

The  absence  of  the  original  must  first  be  accounted  for. 
—Grant  v.  Oliver,  91  Cal.  158,  27  P.  596. 

The  record  of  an  instrument  required  by  law  to  be  re- 
corded is  admissible  without  accounting  for  the  original. 
—Adams  v.  Hopkins,  144  Cal.  19,  77  P.  712. 
Colorado.  A  married  woman's  deed  acknowledged  and 
certified  according  to  statute  is  admissible  in  evidence. — 
Knight  v.  Lawrence,  19  Colo.  425,  36  P.  242. 

Where  no  statute  provides  for  proof  of  execution  of  a 
deed  to  land  in  Colorado  by  acknowledgment  taken  with- 
out the  state  neither  the  deed  itself  nor  its  record  is 
admissible.— Trowbridge  v.  Addoms,  23  Colo.  518,  48  P.  535. 
Kansas.  The  record  in  the  office  of  the  register  of  deeds 
of  a  patent  is  admissible  in  evidence  without  proof  that 
the  original  is  lost  or  destroyed,  or  not  under  the  control 
of  the  party  desiring  to  use  it. — Bernstein  v.  Smith,  10 
Kan.  60. 

Nebraska.  The  record  of  a  deed  may  be  shown  without 
inquiry  as  to  the  original  whenever  the  evidence  as  a 
whole  fairly  indicates  that  the  original  is  not  in  the  pos- 
session or  under  the  control  of  the  party  offering  such 
proof.— Staunchfield  v.  Jeutter,  4  Neb.  (Unof.)  847,  96 
N.  W.  642. 

New  Mexico.  Record  copy  of  lost  deed,  made  more  than 
thirty  years  before,  admissible  to  show  that  original  was 
in  existence  at  the  time  and  that  it  was  executed  by  the 
party  whose  name  is  signed  to  it,  though  it  would  be 
inadmissible    as    an    official    record    because    statute    not 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  331 

complied  with. — Union  Land  &  Grazing  Co.  v.  Arce,  21 
N.  IE.  115,  152  P.   1143. 

Oklahoma.  An  officer's  certificate  of  the  grantor's 
acknowledgment  of  the  execution  of  a  deed  filed  for  record 
is  a  sufficient  compliance  with  a  requirement  of  attesta- 
tion by  witnesses  to  the  grantor's  signature  by  mark. — 
Campbell  v.  Harsh,  31  Okl.  436,  122  P.  127. 

The  records  of  a  register  of  deeds,  or  certified  copies 
thereof,  may  be  received  in  evidence  to  prove  an  in- 
strument authorized  to  be  recorded,  when  the  original 
is  not  in  the  possession  or  under  the  control  of  the  party 
desiring  to  use  the  same. — Dyal  v.  Norton,  (Okl.),  150 
P.  703. 

Oregon.  By  statute,  the  record  of  a  duly  recorded  con- 
veyance may  be  read  in  evidence  in  any  court  of  the 
state.— Stanley  v.  State,  15  Or.  508,  16  P.  174. 
South  Dakota.  The  statute  not  requiring  the  register  of 
deeds  to  keep  a  record  of  the  persons  to  whom  deeds  were 
delivered  after  recording,  a  book  containing  such  record 
is  inadmissible  when  offered  for  such  purpose  through 
his  successor. — Davis  v.  Davis,  24  S.  D.  474,  124  N.  W. 
715. 

A  sheriff's  deed  properly  acknowledged  and  recorded  is 
admissible  in  evidence,  without  further  proof  of  execution. 
—Bliss  v.  Waterbury,  27  S.  D.  429.  131  N.  W.  731. 
Texas.  Where  it  is  proposed  to  prove  the  contents  of 
a  record,  the  record  books  of  original  entries  are  the  best 
or  primary  evidence,  though  copies  are  in  general  admis- 
sible, on  account  of  the  inconvenience  of  producing  in 
court  the  originals.— Peck  v.  Clark,  18  Tex.  239. 

Books  of  registry  of  deeds  being  but  copies  of  originals, 
are  inadmissible,  except  by  statute,  without  accounting 
for  non-production  of  the  originals. — Peck  v.  Clark,  18 
Tex.  239. 

The  original  record  book  is  the  best  evidence  of  what 
it  contains.— Falls  Land  &  Cattle  Co.  v.  Chisholm,  71  Tex. 
523,  9   S.   W.   479. 

Record  of  a  deed  or  contract  of  sale,  though  unproved, 
filed  and  recorded  in  the  handwriting  of  a  deceased 
county  clerk,  admissible  to  show  sale  and  conveyance. — 
Veatch  v.  Gray,  41  Tex.  Civ.  App.  145,  91  S.  W.  324. 


332     RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

Mutilated  records  are  admissible,  if  there  is  enough  to 
show  the  execution  of  the  instrument. — Ryle  v.  Davidson, 
(Tex.  Civ.  App.),  116  S.  W.  823. 

Affidavit  on  record  that  affiant  once  had  in  his  posses- 
sion a  certain  deed  conveying  a  land  certificate,  and  that 
the  deed  was  lost,  inadmissible. — White  v.  McCullough, 
56  Tex.  Civ.  App.  383,  120  S.  W.  1093. 

A  duly  certified  copy  of  a  deed  recorded  more  than 
thirty  years  before  the  trial,  is  admissible  in  evidence, 
though  the  deed  was  alleged  to  have  been  a  forgery. — 
Rudolph  v.  Tinsley,   (Tex.  Civ.  App.),  143  S.  W.  209. 

The  statute  of  Texas  which  authorizes  the  introduction 
in  evidence  of  a  certified  copy  of  a  deed  applies  only  to 
deeds  properly  recorded  in  Texas  and  not  to  copies  of 
deeds  recorded  in  other  states  conveying  lands  in  Texas. — 
William  M.  Rice  Institute  v.  Freeman,  (Tex.  Civ.  App.), 
145  S.  W.   6S8. 

Only  of  such  documents  as  are  required  or  permitted 
by  law  to  be  filed  in  a  public  office,  so  as  to  constitute 
them  archives  or  records,  can  certified  copies  be  received 
in  evidence.  (Certified  copy  of  contract  of  reinsurance 
of  surety  company  acting  as  surety  for  an  insurance  com- 
pany, filed  with  insurance  commissioner,  inadmissible.) — 
Southwestern  Surety  Ins.  Co.  v.  Anderson,  (Tex.),  155 
S.  W.   1176. 

CERTIFICATES  OF  ACKNOWLEDGMENT. 

A  valid   acknowledgment   permits   a   deed  to   be   intro- 
duced in  evidence,  without  further  proof: 
California:     Landers  v.   Bolton.  26   Cal.   393,   405. 
Colorado:     Knight  v.   Lawrence,   19   Colo.   425,   36   P.   242 
(married  woman's  deed). 

Nebraska:  Buck  v.  Gage,  27  Neb.  306,  43  N.  W.  110  (date 
on  certificate  of  acknowledgment,  earlier  than  that  on 
deed,  governs,  and  carries  the  execution  to  the  later  date, 
and  admits) ;  Linton  v.  Cooper,  53  Neb.  400,  73  N.  W. 
731);  Brown  v.  Collins,  (Neb.),  96  N.  W.  173. 
Washington:  Gardner  v.  Port  Blakely  M.  Co.,  8  Wash. 
1,  35  P.  402  (original,  properly  acknowledged,  admissible, 
though  record  fails  to  show  any  acknowledgment). 

A  certificate  of  acknowledgment  made  by  an  officer  au- 
thorized to  take  acknowledgments  is  only  prima  facie  evi- 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  333 

dence  of  the  execution  of  the  instrument,  and,  while  it 
is  entitled  to  a  strong  presumption  in  favor  of  its  truth, 
it  may  be  impeached  by  parol  testimony: 
Arkansas:  Petty  v.  Grisard,  45  Ark.  117. 
California:  Le  Mesnager  v.  Hamilton,  101  Cal.  532,  35 
P.  1054  (married  woman's  purported  acknowledgment; 
never   appeared    before    notary). 

Kansas:  People's  Gas  Co.  v.  Fletcher,  81  Kan.  76,  105  P. 
34  (wife's  acknowledgment;  •  her  denial  of  acknowledg- 
ment). 

Texas:  Wheelock  v.  Cavitt,  91  Tex.  679,  45  S.  W.  796 
(wife  in  fact  never  appeared  before  notary). 
California.  The  certificate  of  a  notary  public  or  U.  S. 
consul  of  an  acknowledgment  of  a  deed  is  prima  facie 
evidence  of  official  character. — Mott  v.  Smith,  16  Cal.  534, 
552. 

Colorado.  A  conveyance  is  valid  between  the  parties 
without  acknowledgment. — Holladay  v.  Dailey,  1  Colo.  460. 
Acknowledgments  taken  before  notaries  out  of  the  state 
held  sufficient.— Quimby  v.  Boyd,  8  Colo.  194,  6  P.  462. 
Nebraska.  The  date  on  certificate  of  acknowledgment 
prevails  over  a  later  date  named  as  the  date  of  execution 
in  the  deed,  and  entitles  the  deed  to  be  admitted. — Buck 
v.  Gage,  27  Neb.  306,  43  N.  W.  110. 

Oklahoma.  The  fact  that  the  acknowledgment  is  dated 
earlier  than  the  deed  does  not  render  the  deed  inadmis- 
sible where  the  conflict  in  dates  is  apparently  a  clerical 
error. — Mosier  v.  Momsen,  13  Okl.  41,  74  P.  905. 
Oregon.  The  record  of  a  deed  duly  acknowledged  is 
admissible  to  show  delivery. — Series  v.  Series,  35  Or.  289, 
67  P.  634. 

Texas.  The  signature  of  the  notary  taking  an  acknowl- 
edgment is  necessary  in  order  to  authenticate  an  instru- 
ment so  as  to  make  it  admissible  in  evidence. — Andrews 
v.  Marshall,  26  Tex.  212. 

Proper    Acknowledgment    and    Registration. 
California.     Certificate    of    notary    to    acknowledgment    of 
deed  made  thirteen  years  after  its  execution  permits  the 
deed  to  be  read  in  evidence  and  recorded. — Clark  v.  Troy, 
20  Cal.  219,  223. 


334  RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

Colorado.  A  copy  of  the  record  of  a  deed  not  properly 
acknowledged  is  Inadmissible. — Trowbridge  v.  Addoms, 
23  Colo.  518,  48  P.  535. 

Idaho.  The  certificate  of  acknowledgment  to  an  instru- 
ment made  by  the  officer  constitutes  his  official  statement 
and  declaration,  made  at  the  time  of  the  act,  as  to  the 
truth  and  accuracy  thereof,  and  is  more  likely  to  be  true 
and  correct  than  the  memory  of  such  person  in  years 
afterward.— First  Nat.  Bank  V.  Glenn,  10  Ida.  224,  77  P. 
623. 

Kansas.  The  acknowledgment  of  a  deed  is  prima  facie 
evidence  of  its  execution,  and  a  deed  properly  acknowl- 
edged may  be  given  in  evidence  without  further  proof, 
although  its  execution  is  denied  under  oath  in  the  answer. 
— Wilkins  v.  Moore,  20  Kan.  538. 

Nebraska.  The  function  of  an  acknowledgment  is  two- 
fold— to  authorize  the  deed  to  be  given  in  evidence  with- 
out further  proof  of  its  execution,  and  to  entitle  it  to  be 
recorded.  The  acknowledgment  is  not  part  of  the  deed 
itself.— Burbank  v.   Ellis,   7  Neb.   156. 

A  valid  acknowledgment  permits  a  conveyance  to  be  re- 
ceived in  evidence  without  further  proof,  but  one  not 
acknowledged  may  be  received,  if  its  execution  and  de- 
livery be  otherwise  proved. — Linton  v.  Cooper,  53  Neb. 
400,  73  N.  W.  731. 

Nevada.  A  deed  made  prior  to  the  act  of  November  5, 
1861,  concerning  conveyances,  but  acknowledged  as  pro- 
vided therein,  is  admissible  in  evidence,  such  acknowledg- 
ment being  competent  prima  facie  proof  of  its  execution. 
— Sharon  v.  Davidson,  4  Nev.  416. 

North  Dakota.  The  registry  acts  changed  the  common 
law  rule  as  to  proof  of  execution  of  duly  acknowledged 
instruments. — Grandin  v.  Emmons,  10  N.  D.  223,  86  N. 
W.  723. 

A  written  assignment  of  a  real  estate  mortgage,  the 
execution  of  which  is  acknowledged  before  a  notary  pub- 
lic of  another  state,  is  entitled  to  be  read  in  evidence  under 
the  provisions  of  section  5696,  Rev.  Codes,  without  further 
proof,  when  the  certificate  of  acknowledgment  attached 
thereto  is  authenticated  by  the  signature  and  official  seal 
of   such   notary.     It   is    not   necessary    to   have    attached 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  335 

thereto  the  certificate  of  an  officer  of  higher  rank  to  the 
official  character  and  signature  of  such  notary. — Grandin 
v.  Emmons,  10  N.  D.  223,  86  N.  W.  723. 

Copy  of  a  deed  of  assignment  for  the  benefit  of  cred- 
itors, certified  to  be  a  copy  by  a  court  commissioner  of  a 
circuit  court  of  Wisconsin,  and  containing  no  original 
acknowledgment  by  the  grantor  therein  named,  is  not 
entitled  to  record  in  the  office  of  the  register  of  deeds 
in  the  county  in  this  state  wherein  the  lands  are  situated 
which  are  claimed  to  be  conveyed  by  such  assignment. — 
Goss  v.  Herman,  20  N.  D.  295,  127  N.  W.  78. 
Oklahoma.  The  acknowledgment  of  a  deed  is  prima 
facie  evidence  of  its  execution,  and  a  deed  properly 
acknowledged  may  be  given  In  evidence  without  further 
proof,  although  its  execution  is  denied  under  oath. — Dyal 
v.  Norton,   (Okl.),  150  P.  703. 

Oregon.  Offer  of  deed  in  evidence  is  sufficient  to  carry 
the  notary's  certificate  with  it. — Laurent  v.  Lanning,  32 
Or.  11,  51  P.  80. 

Texas.  Under  statute  providing  that  after  a  deed  has 
been  recorded  for  ten  years  informalities  in  acknowledg- 
ment shall  be  no  objection  to  its  admission  in  evidence, 
such  a  deed  need  not  be  acknowledged  at  all  in  order  for 
it  or  its  record  to  be  admissible. — Bledsoe  v.  Haney,  37 
Tex.  Civ.  App.  285,  122  S.  W.  455. 

Utah.  Statute  making  deeds  recorded  before  a  certain 
date  admissible,  regardless  of  defects,  applies  to  suit 
brought  before  the  act  went  into  effect,  but  tried  there- 
after.—Tate  v.  Rose,  35  Utah  229,  99  P.  1003. 
Washington.  The  proper  acknowledgment  of  a  deed  en- 
titles the  original,  or  a  certified  copy  of  the  record  there- 
of to  be  read  in  evidence  without  further  proof  of  execu- 
tion.—Gardner  v.  Port  Blakeley  Mill  Co..  S  Wash.  1,  35 
P.  402;  Garneau  v.  Port  Blakeley  Mill  Co.,  8  Wash.  467, 
36  P.  463. 

Wyoming.  A  certificate  of  acknowledgment  is  to  receive 
a  liberal  construction,  and,  where  an  omission,  such  as 
the  year  in  which  it  was  acknowledged,  can  be  supplied 
by  reasonable  and  fair  construction  of  the  whole  instru- 
ment, the  certificate  will  be  sufficient. — Boswell  v.  First 
Nat.  Bank,  16  Wyo.  161,  92  P.  624. 


336     RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD 

Defective  Acknowledgments. 
Where  the  instrument  is  not  entitled  to  record  by  rea- 
son of  not  being  properly  acknowledged  or  otherwise,  or 
is  not  properly  recorded,  the  record  or  a  copy  thereof  is 
not  admissible: 

Arkansas:  Trammel  v.  Thurmond,  17  Ark.  203~  Worsham 
v.  Freeman,  34  Ark.  55  (absence  of  notary's  seal). 
California:  Hastings  v.  Vaughn,  5  Cal.  315  (no  seal); 
Emeric  v.  Alvarado,  90  Cal.  444,  27  P.  356  (failure  of 
acknowledging  officer  to  show  authority  or  venue). 
Kansas:  Meskimen  v.  Day,  35  Kan.  46,  10  P.  14  (absence 
of  seal). 

South  Dakota:  Price  &  Baker  Co.  v.  Madison,  17  S.  D. 
247,  95  N.  W.  933  (no  acknowledgment). 
Texas:  Fordtran  v.  Perry,  (Tex.  Civ.  App.),  60  S.  W. 
1000  (same).  See  3  Wigmore  Ev.,  §  1651. 
California.  An  alleged  duplicate  of  an  instrument  with 
no  acknowledgment  shown  thereon  is  inadmissible  under 
the  statute  relating  to  the  admission  of  instruments  con- 
veying real  property. — Fresno  Canal  &  Irr.  Co.  v.  Dun- 
bar, 80  Cal.  530,  22  P.  275. 

Colorado.  A  defective  acknowledgment  is  no  proof  of 
execution,  and  unless  the  execution  is  otherwise  proven, 
the  deed  is  inadmissible. — McGinnis  v.  Egbert,  8  Colo.  41, 
5  P.  652. 

An  acknowledgment  unauthorized  by  law  prohibits  the 
admission  of  a  deed  in  evidence. — Trowbridge  v.  Addoms, 
23  Colo.  518,  48  P.  535. 

Oklahoma.  The  evidence  to  impeach  a  certificate  of 
acknowledgment  should  be  clear,  cogent  and  convincing, 
and  such  as  produces  a  conviction  amounting  to  a  moral 
certainty  that  the  certificate  is  false. — Dyal  v.  Norton, 
(Okl.),  150  P.  703. 

CHURCH  REGISTERS. 
Kansas.  A  church  register  of  baptisms  and  burials  is  not 
admissible  to  prove  the  identity  of  the  child  baptized  with 
a  child  buried  six  years  thereafter,  without  further  proof 
of  the  identity,  the  names  being  substantially  different. — 
Meconce  v.  Mower,  37  Kan.  298,  15  P.  155. 


RELEVANCY  OF  ENTRY  IN  PUBLIC  RECORD  337 

New  Mexico.  A  certificate  of  baptism  made  by  a  priest 
is  inadmissible  to  prove  the  age  of  the  person  baptized. — 
Berry  v.  Hull,  6  N.  M.  643,  30  P.  936. 
Texas.  A  church  registry  is  admissible  to  show  who  was 
the  person  mentioned  in  a  certain  entry  therein,  though 
her  name  was  not  stated  in  full. — Overall  v.  Armstrong, 
(Tex.  Civ.  App.),  25  S.  W.  440. 

UNAUTHORIZED  ACTS  AND  RECORDS. 

Colorado.  Reports  of  committees  appointed  by  the  court 
in  pursuance  of  statute,  to  examine  the  books  of  the  treas- 
urer, are  inadmissible  to  prove  the  facts  recited. — McClure 
v.  La  Plata  County,  19  Colo.  122,  34  P.  763. 

A  memorandum  made  in  a  book  by  a  water  commis- 
sioner from  reports  of  his  deputies  as  to  the  amount  of 
water  in  a  stream  and  the  amount  defendant  was  entitled 
to  divert  is  inadmissible,  the  statute  not  requiring  him  to 
keep  such  book. — Big  Thompson  &  Platte  River  Ditch  Co. 
v.  Mayne,  36  Colo.  355,  91  P.  44. 

Kansas.  Verified  report  of  examination  made  quarterly 
of  county  treasurer's  office  made  by  probate  judge  and  two 
examiners  appointed  to  assist  him,  under  statute,  inad- 
missible.— State  v.  Krause,  58  Kan.  651,  50  P.  882. 
Nebraska.  Certificate  of  death,  signed  by  physician,  not 
under  oath,  required  by  ordinance  to  be  deposited  with 
secretary  of  board  of  health  as  prerequisite  to  obtaining 
burial  permit,  inadmissible. — Sovereign  Camp  of  Wood- 
men of  the  World  v.  Grandon,  64  Neb.  39,  89  N.  W.  448. 
South  Dakota.  Monthly  summary  of  fees  received  by  a 
register  of  deeds,  made  up  from  a  book  containing  the 
separate  items,  inadmissible. — Putnam  v.  Custer  County, 
25  S.  D.   542,  127  N.  W.  641. 

Where  there  is  no  statutory  authority  for  the  making 
of  a  record  by  a  public  officer,  a  record  is  incompetent  and 
inadmissible.  (Filing  of  affidavit  of  publication  of  no- 
tice of  maturity  of  tax  sale  certificate.) — McKinnon  v, 
Fuller,  33  S.  D.  582,  146  N.  W.  910. 


338       STATEMENTS  IN  HISTORIES,   MAPS,   ETC. 


Article  35. 

relevancy  of  statements  in  works  of  history,  maps, 
charts  and  plans. 

Statements  as  to  matters  of  general  public  his- 
tory made  in  accredited  historical  books  are 
deemed  to  be  relevant  when  the  occurrence  of  any- 
such  matter  is  in  issue  or  is  or  is  deemed  to  be 
relevant  to  the  issue;  but  statements  in  such 
works  as  to  private  rights  or  customs  are  deemed 
to  be  irrelevant.3 

[Submitted]  Statements  of  facts  in  issue  or  rel- 
evant or  deemed  to  be  relevant  to  the  issue  made 
in  published  maps  or  charts  generally  offered  for 
public  sale  as  to  matters  of  public  notoriety,  such 
as  the  relative  position  of  towns  and  countries, 
and  such  as  are  usually  represented  or  stated  in 
such  maps  or  charts,  are  themselves  deemed  to  be 
relevant  facts;1  but  such  statements  are  irrele- 
vant if  they  relate  to  matters  of  private  concern, 


1  In  R.  v.  Orton,  maps  of  Australia  were  given  in  evidence 
to  show  the  situation  of  various  places  at  which  the  defend- 
ant said  he  had  lived.  (Maps,  plans  and  charts  are  frequent- 
ly used,  by  way  of  illustration  or  explanation  of  collateral 
matters,  and,  if  ancient,  as  evidence.  1  Greenl.  Ev.,  §  145,  n. 
The  proposed  extension  of  the  law  to  maps  offered  for  public 
sale,  such  as  the  public  and  judges  resort  to  for  information, 
seems  unobjectionable).  Entries  in  books  of  account  made 
by  a  clerk  are  admissible  against  the  principal.  Willin's 
Ins.  Co.  v.  Frothingham,  122  Mass.  391;  Anderson  v.  Edwards, 
123  Mass.  273;  though  not  conclusive,  Holmes  v.  Hunt,  122 
Mass.  505.  See  also  Parker  v.  Nickerson,  137  Mass.  487;  Fol- 
som  v.  Grant,  136  Mass.  494;  Floyd  v.  Tewksbury,  129  Mass. 
362. 

3  See  cases  in  2  Ph.  Ev.  155-156;  (1  Greenl.  Ev.,  §  6  and 
notes). 


STATEMENTS  IN  HISTORIES,  MAPS,  ETC.       339 

or  matters  not  likely  to  be  accurately  stated  in 
such  documents.2 

LEARNED    TREATISES. 
In   General. 

"More  than  one  reason  has  been  advanced  for  prohibiting 
the  use  of  learned  treatises  in  evidence;  but  the  only  legiti- 
mate one,  and  the  one  generally  pointed  out  and  relied  upon 
in  judicial  opinion,  is  that  such  an  offer  of  evidence  purports 
to  employ  testimonially  a  statement  made  out  of  court  by  a 
person  not  subjected  to  cross-examination,  i.  e.,  purports  to 
violate  the  fundamental  doctrine  of  the  Hearsay  rule."  3 
Wigmore  Ev.,  §  1690. 

Several  states  have  passed  statutes  declaring  historical 
works,  books  of  science  or  art,  and  published  maps  or 
charts,  when  made  by  persons  indifferent  between  the 
parties,  to  be  prima  facie  evidence  of  facts  of  general 
notoriety  and  interest.  (3  Wigmore  Ev.,  §  1693.) 
Nebraska.  "Catechism  of  a  Locomotive,"  admitted. — 
Sioux  City  &  P.  R.  Co.  v.  Finlayson,  16  Neb.  587,  20  N. 
W.  860. 

Texas.  Books  on  parliamentary  rules  inadmissible  to 
show  whether  proceedings  in  a  convention  were  taken 
according  to  parliamentary  law. — Cranfill  v.  Hayden,  22 
Tex.  Civ.  App.  656,  55  S.  W.  805. 

Historical  Works. 
Oregon.     A   historical   work   not   admissible   to    show   the 
unwritten  law  as  to  marriage  customs  in  China. — State  v. 
Moy  Looke,  7  Or.  54. 

Utah.     Works  of  history,  church  records  and  journals  are 
admissible  to  show  the  meaning  of  "sealed"  or  "sealing 
ordinance"  as  constituting  a  marriage  within  the  Mormon 
church.— Hilton  v.  Roylance,  25  Utah  129,  69  P.  660. 
Medical  Works. 

Medical  works  are  not  admissible  in  evidence  to  prove 
facts  or  opinions  therein  expressed: 

2  E.  g.,  a  line  in  a  tithe  commutation  map  purporting  to 
denote  the  boundaries  of  A's  property  is  irrelevant  in  a  ques- 
tion between  A  ;uid  B  as  to  the  position  of  the  boundaries. 
Wilberforce  v.  Hearfield,  L.  R.  5  Ch.  Div.  709,  and  see  Ham- 
mond v.  ,   10  Ex.  390. 


340       STATEMENTS  IN  HISTORIES,  MAPS,   ETC. 

California:  People  v.  Wheeler,  60  Cal.  582  (district  at- 
torney reading  to  jury) ;  People  v.  Bowers,  1  Cal.  App. 
501,  82  P.  553  (attorney  for  plaintiff  asking  "Is  this  a  cor- 
rect statement,  Dr.?"  and  proceeding  to  read);  Fisher  v. 
Southern  Pac.  R.  Co.,  89  Cal.  399,  26  P.  894  (on  cross- 
examination,  reading  statement  from  medical  works  and 
asking  witness  if  he  agrees  with  them,  for  the  purpose  of 
sustaining  counsel's  theory  of  the  case,  and  not  merely 
to  involve  witness  in  contradictions) ;  Lilley  v.  Parkinson, 
91  Cal.  655,  27  P.  1091  (same). 

Colorado:  Denver  City  Tramway  Co.  v.  Gawley,  23  Colo. 
App.   332,   129  P.   258. 

South  Dakota:  Brady  v.  Shirley,  14  S.  D.  447,  85  N.  W. 
1002   (book  on  veterinary  science). 

Texas:  Burt  v.  State,  38  Tex.  Cr.  R.  397,  40  S.  W.  1002 
(counsel  attempting  to  read  to  jury  book  on  insanity) ; 
Fowler  v.  Lewis,  25  Tex.  Supp.  380  (treatise  on  horses); 
Boehringer  v.  A.  B.  Richards  Medicine  Co.,  9  Tex.  Civ. 
App.  284,  29  S.  W.  508   (U.  S.  Dispensatory). 

On  cross-examination  to  test  knowledge  of  witness  or 
involve  in  contradiction,  medical  works  may  be  read. — 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Farmer,  102  Tex.  235,  115  S. 
W.  260;  Clukey  v.  Seattle  Elec.  Co.,  27  Wash.  70,  67  P. 
379. 

California.  "Facts  of  general  notoriety  and  interest," 
under  the  statute,  are  facts  of  a  public  nature,  either  at 
home  or  abroad,  not  existing  in  the  memory  of  men  as 
contradistinguished  from  facts  of  a  private  nature  exist- 
ing within  the  knowledge  of  living  men,  and  as  to  which 
they  may  be  examined  as  witnesses.  (Medical  work  not 
admitted  in  evidence.) — Gallagher  v.  Market  St.  R.  Co., 
67  Cal.  16,  6  P.  869. 

Medical  treatises  are  not  admissible  in  evidence, 
whether  proved  to  be  standard  works  or  not,  except  to 
discredit  a  witness  who  bases  his  testimony  upon  them, 
and  a  physician  may  not  be  asked  to  name  the  circum- 
stances of  the  cases  he  had  read  where  violence  accom- 
panied hysterical  mania,  as  the  examination  would  be  in 
effect  the  introduction  of  medical  works  in  evidence. — 
People  v.  Goldenson,  76  Cal.  328,  19  P.   161. 


STATEMENTS  IN  HISTORIES,   MAPS,   ETC.       341 

Idaho.  Where  an  expert  has  referred  to  a  particular 
medical  work  to  sustain  his  opinion,  such  work,  but  no 
other,  may  be  admitted  to  contradict  him. — Osborn  v. 
Cary,  28  Ida.  89,  152  P.  473. 

Kansas.  Physician  who  has  given  his  own  opinion  may 
state  that  it  was  formed  from  the  study  of  books  and 
men,  though  a  book  itself  is  not  admissible. — State  v. 
Baldwin,  36  Kan.  1,  12  P.  318. 

Nebraska.  Text-books  on  surgery,  though  of  standard 
authority,  are  not  competent  evidence,  except  as  to  mat- 
ters of  general  notoriety  and  interest,  under  the  Code. — 
Van  Skike  v.  Potter,  53  Neb.  28,  73  N.  W.  295. 
Texas.  "Do  not  all  the  authorities  lay  it  down  as  a  rule 
that  operations  for  injuries  of  this  kind  should  not  be  per- 
formed during  the  period  of  reaction  from  shock?"  inad- 
missible, when  asked  on  cross-examination  of  a  witness 
who  had  not  referred  to  any  book. — Galveston,  H.  &  S. 
A.  Ry.  Co.  v.  Hanway,  (Tex.  Civ.  App.),  57  S.  W.  695. 

Medical  works  are  not  admissible  in  evidence  to  prove 
the  opinions  therein,  either  directly  or  by  quoting  from 
them  and  asking  an  expert  witness  if  he  agrees  with  the 
doctrines  there  laid  down,  and,  if  not,  in  what  respect  he 
differs.— Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Farmer,  (Tex.  Civ. 
App.)(  108  S.  W.  729. 

PRIVATE   MAPS. 
California.     A  private  survey  is  no  evidence  of  the  facts 
it  purports  to  contain. — Rose  v.  Davis,  11  Cal.  133. 

Ancient  map  admitted,  surveyor  and  draughtsman  be- 
ing dead. — Morcom  v.  Baiersky,  (Cal.  App.),  117  P.  560. 
Montana.  Private  plat  admissible  to  aid  in  identifying 
property.— Drew  v.  City  of  Butte,  44  Mont.  124,  119  P.  279. 
Texas.  Report  and  plat  of  surveyors,  made  in  suit  to 
which  intervenors  were  not  parties,  inadmissible  against 
them.— Jordan  v.  Young,    (Tex.  Civ.  App.),  56  S.  W.  762. 

Plat  of  land  admitted,  made  by  a  surveyor  from  field 
notes,  in  deed  of  clerk  of  probate  court  partitioning  land. 
— Unknown  Heirs  of  Criswell  v.  Robbins,  (Tex.  Civ.  App.), 
152  S.  W.  210. 

Market  Reports. 

Standard  price  lists  and  market  reports,  shown  to  be 
in  general   circulation   and   relied   on   by   the   commercial 


342       STATEMENTS  IN  HISTORIES,   MAPS,  ETC. 

world  and  by  those  engaged  in  trade,  are  admissible  as 
evidence  of  market  value  of  articles  of  trade: 
Arkansas:     St.  Louis   &   S.  P.  R.   Co.  v.  Pearce,   82  Ark. 
353,  101  S.  W.  760  (in  trade  journal  printed  and  published 
at  place  where  the  stock  was  sold). 

California:  Vogt  v.  Cope,  66  Cal.  31,  4  P.  915  (it  must 
be  shown  how  they  were  obtained). 

Kansas:  Ray  v.  Missouri,  K.  &  T.  Ry.  Co.,  90  Kan.  244, 
133  P.  847  (to  show  loss  in  price  from  delay  in  trans- 
portation). 

Texas:  Houston  &  T.  C.  Ry.  Co.  v.  Williams,  (Tex.  Civ. 
App.),  31  S.  W.  556  (may  be  used  as  witness's  only  source 
of  information) ;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Gunter, 
39  Tex.  Civ.  App.  129,  86  S.  W.  938  (market  reports  in 
Live  Stock  Reporter) ;  Bullard  v.  Stewart,  46  Tex.  Civ. 
App.  49,  102  S.  W.  174  (Daily  Live  Stock  Reporter,  printed 
at  place  of  purchase  of  mules) ;  St.  Louis  &  S.  F.  R.  Co. 
v.  May,  53  Tex.  Civ.  App.  257,  115  S.  W.  900  (to  show 
that  a  market  existed) ;  Houston  Packing  Co.  v.  Griffith, 
(Tex.  Civ.  App.),  144  S.  W.  1139  (persons  who  derived 
knowledge  from  market  quotations  may  testify  as  to 
knowledge  so  obtained). 

Colorado.  In  the  absence  of  better  evidence  the  prices 
published  in  a  commercial  journal  are  admissible  as  evi- 
dence of  prices  current,  but  where  such  evidence  is  ad- 
missible the  sources  of  information,  or  the  mode  in  which 
such  prices  are  ascertained,  must  first  be  shown  to  ren- 
der it  competent.— Willard  v.  Mellor,  19  Colo.  534,  36 
P.  148. 

Nebraska.  Market  reports  are  evidence  of  value. — Chi- 
cago, B.  &  Q.  R.  Co.  v.  Todd,  74  Neb.  712,  105  N.  W.  83, 
Texas.  Knowledge  of  prices  gained  by  market  reports 
admissible. — Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Karrer,  (Tex. 
Civ.  App.),  109   S.  W.  440. 

MORTALITY  TABLES. 
Mortality  tables  are  admissible  to  show  the  probable 
duration  of  life  of  one  killed  by  an  accident,  or  so  injured 
that  his  earning  capacity  is  permanently  impaired: 
Arkansas:  Arkansas  M.  R.  Co.  v.  Griffith,  63  Ark.  491, 
39  S.  W.  550  (though  plaintiff  was  not  an  insurable  risk). 
California:     Keast   v.    Santa    Ysabel    G.    M.    Co.,    136    Cal. 


STATEMENTS  IN  HISTORIES,  MAPS,  ETC.       343 

256,  68  P.  771  (without  preliminary  proof  of  authentica- 
tion and  standard  quality) ;  Cusick  v.  Boyne,  1  Cal.  App. 
643,  82  P.  985. 

Colorado:  Rio  Grande  Southern  R.  Co.  v.  Nichols,  52 
Colo.  300,  123  P.  318. 

Montana:  Gilman  v.  Dart  Hardware  Co.,  42  Mont.  96, 
111  P.  550. 

Nebraska:  City  of  Lincoln  v.  Smith,  28  Neb.  762,  45 
N.  W.  41  (Carlisle  Tables) ;  Friend  v.  Ingersoll,  39  Neb. 
717,  58  N.  W.  281  (same);  Acken  v.  Tinglehoff,  83  Neb. 
296,  119  N.  W.  456;  Broz  v.  Omaha  Maternity  and  Gen- 
eral Hospital  Ass'n,  96  Neb.  648,  148  N.  W.  575. 
Oklahoma:  City  of  Shawnee  v.  Slankard,  29  Okl.  133, 
116   P.   803. 

South  Dakota:  Whaley  v.  Vidal,  27  S.  D.  642,  132  N.  W. 
248. 

Texas:  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Stewart,  (Tex.  Civ. 
App.),   164   S.  W.   1059. 

In  an  action  for  damages  for  personal  injuries,  where 
such  injuries  resulted  in  the  death  of  the  party  injured, 
or  are  shown  to  be  permanent,  the  Carlisle  table  of  ex- 
pectancy of  life  is  competent  and  admissible  in  evidence, 
as  bearing  on  and  tending  to  prove  the  expectancy  of  life, 
but  not  conclusive  of  the  question,  and  is  to  be  received 
and  considered  by  the  jury  as  any  other  evidence, 
and  subject  to  the  same  rules  as  to  weight  and  sufficiency 
as  other  testimony;  and  its  statements  as  to  expected 
duration  of  life  may  be  varied,  strengthened,  weakened, 
or  entirely  destroyed,  by  other  competent  evidence  on 
the  question  of  the  expected  continuance  of  life  of  the 
injured  party,  such  as  testimony  pertaining  to  the  health 
of  the  party  at  the  time  of  the  injury. — City  of  Friend  v. 
Ingersoll.  (Neb.),  58  N.  W.  281;  San  Bois  Coal  Co.  v. 
Resetz,  43  Okl.  384,  143  P.  46. 

Arkansas.  Mortality  tables  shown  to  be  in  general  use 
by  life  insurance  companies  doing  business  in  the  state 
are  admissible  to  prove  probable  expectancy  or  duration 
of  life,  though  not  authenticated. — St.  Louis,  I.  M.  &  S. 
Ry.  Co.  v.  Trotter,  101  Ark.  183,  142  S.  W.  189. 
Nebraska.  Evidence  of  the  probable  duration  of  life  as 
shown   by   mortality   tables   is   modified   by    proof   of   ill 


344       STATEMENTS  IN  HISTORIES,   MAPS,   ETC. 

health  or  hazardous  occupation. — Broz  v.  Omaha  Maternity 
&  General  Hospital  Ass'n,  96  Neb.  648,  148  N.  W.  575. 

In  an  action  for  injuries  not  resulting  in  death,  where 
plaintiff's  earning  capacity  is  permanently  impaired,  ap- 
proved mortality  tables  are  admissible  to  show  the  ex- 
pected duration  of  life. — Jones  v.  Great  Western  R.  Co., 
97  Neb.  306,  149  N.  W.  813;  Henry  v.  City  of  Lincoln,  97 
Neb.  865,  151  N.  W.  933. 

Oklahoma.  Mortality  tables  are  admissible,  though  they 
do  not  apply  to  a  man  of  decedent's  occupation.  (Shot 
firer  in  a  mine.) — San  Bois  Coal  Co.  v.  Resetz,  43  Okl. 
384,  143  P.  46. 

MERCANTILE    REPORTS. 

Texas.  Rules  of  a  Master  Car  Builders'  Ass'n  admissible 
to  show  financial  standing  of  a  bank,  where  they  were 
made  by  publisher's  agents  for  its  own  subscribers,  of 
whom  plaintiff  was  not  one. — Baker  v.  Asche,  80  Tex.  356, 
16   S.  W.  36. 

Reports  of  a  mercantile  agency  are  not  admissible  to 
prove  a  person  a  member  of  a  partnership,  unless  the  data 
upon  which  the  reports  were  based  were  furnished  by  the 
party  to  be  charged  or  by  someone  with  his  acquiescence. 
—Frank  v.  J.  S.  Brown  Hdwe.  Co.,  10  Tex.  Civ.  App.  430, 
31  S.  W.  64. 

SUNDRY   TABLES   AND    DOCUMENTS. 
Texas.     Rules  of  a  Master  Car  Builders'  Ass'n  admissible 
to  show  proper  construction  of  a  contract. — Leas  v.  Con- 
tinental Fruit  Express,  45  Tex.  Civ.  App.  162,  99  S.  W.  859. 

Railway  time  tables  contained  in  a  "Railway  and  Hotel 
Guide,"  recognized  by  railway  and  hotel  men  as  being 
authentic,  are  admissible  to  show  schedule  of  a  certain 
train  upon  which  plaintiff  would  have  gone  if  she  had 
received  a  telegram  in  time. — Western  Union  Tel.  Co. 
v.  Gilliland,  (Tex.  Civ.  App.),  130  S.  W.  212. 
Washington.  U.  S.  tide  tables  prepared  for  use  of  nav- 
igators in  Puget  Sound,  admissible.— Cherry  Point  Fish 
Co.  v.  Nelson,  25  Wash.  558,  66  P.  55. 

Printed  rules  of  -the  police  department  delivered  to 
policemen,  are  competent  evidence,  though  not  certified, 


ENTRIES  IN  BANKERS'  BOOKS  345 

as  to  the  right  of  the  board  to  suspend  the  officer,  and 
binding  upon  the  board. — Bringgold  v.  City  of  Spokane, 
27  Wash.  202,  67  P.  612. 

Article  36. 
entries  in  bankers'  books. 

A  copy  of  any  entry  in  a  banker's  book  must 
in  all  legal  proceedings  be  received  as  prima  facie 
evidence  of  such  entry,  and  of  the  matters,  tran- 
sactions and  accounts  therein  recorded  [even  in 
favor  of  a  party  to  a  cause  producing  a  copy  of  an 
entry  in  the  book  of  his  own  bank3]. 

Such  copies  may  be  given  in  evidence  only  on 
the  condition  stated  in  Article  71.  (f ) 

The  expression,  "bankers'  books,"  includes 
ledgers,  day  books,  cash  books,  account  books  and 
all  other  books  used  in  the  ordinary  business  of 
the  bank. 

The  word  "bank"  is  restricted  to  banks  which 
have  duly  made  a  return  to  the  Commissioners  of 
Inland  Revenue, 

Savings  banks  certified  under  the  Act  relating 
to  savings  banks,  and 

Postoffice  savings  banks. 

The  fact  that  any  bank  has  duly  made  a  return 
to  the  Commissioners  of  Inland  Revenue  may  be 
proved  in  any  legal  proceeding  by  the  production 
of  a  copy  of  its  return,  verified  by  the  affidavit  of 
a  partner  or  officer  of  the  bank,  or  by  the  produc- 
tion of  a  copy  of  a  newspaper  purporting  to  con- 
tain a  copy  of  such  return  published  by  the  Com- 
missioners of  Inland  Revenue. 

3   Harding  v.   Williams,   L.   R.    14  Ch.   Div.   197. 


346     JUDGE'S  POWERS  AS  TO  BANKERS'  BOOKS 

The  fact  that  any  such  savings  bank  is  certified 
under  the  Act  relating  to  savings  banks  may  be 
proved  by  an  office  or  examined  copy  of  its  cer- 
tificate. The  fact  that  any  such  bank  is  a  post- 
office  savings  bank  may  be  proved  by  a  certificate 
purporting  to  be  under  the  hand  of  Her  Majesty's 
Postmaster  General  or  one  of  the  Secretaries  of 
the  Postoffice.1 

Article  37. 
bankers  not  compellable  to  produce  theik  books. 

A  bank  or  officer  of  a  bank  is  not  in  any  legal 
proceeding  to  which  the  bank  is  not  a  party,  com- 
pellable to  produce  any  banker's  book,  or  to  ap- 
pear as  a  witness  to  prove  the  matters,  transac- 
tions and  accounts  therein  recorded  unless  by  or- 
der of  a  Judge  of  the  High  Court  made  for  special 
cause  [or  by  a  County  Court  Judge  in  respect  of 
actions  in  his  own  court.]2 

Article  38. 
judge's  powers  as  to  bankers'  books. 

On  the  application  of  any  party  to  a  legal  pro- 
ceeding, a  Court  or  Judge  may  order  that  such 
party  be  at  liberty  to  inspect  and  take  copies  of 
any  entries  in  a  banker's  book  for  any  of  the  pur- 
poses of  such  proceedings.  Such  order  may  be 
made  either  with  or  without  summoning3  the 
bank,  or  any  other  party,  and  must  be  served  on 
the  bank  three  clear  days  [exclusive  of  Sundays 
and  Bank  holidays]  before  it  is  to  be  obeyed,  un- 
less the  Court  otherwise  directs. 

1  42  &  43  Vict.,  c.   2. 

2  42  &  43  Vict.,  c.   11. 

3  "With  or  without  summoning"  are  the  words  of  the  stat- 
ute,  which   seems  an   odd   expression. 


JUDGMENTS  347 

Article  39.* 
"judgment." 

The  word  "judgment"  in  Articles  40-47  means 
any  final  judgment,  order,  or  decree  of  any  court. 

The  provisions  of  Articles  40-45,  both  inclusive, 
are  all  subject  to  the  provisions  of  Article  46. 

Article  40. 
am.  judgments   conclusive  proof   of  their  legax  effect. 

All  judgments  whatever  are  conclusive  proof 
as  against  all  persons  of  the  existence  of  that 
state  of  things  which  they  actually  effect  when 
the  existence  of  the  state  of  things  so  effected 
is  a  fact  in  issue  or  is  or  is  deemed  to  be  relevant 
to  the  issue.  The  existence  of  the  judgment  ef- 
fecting it  may  be  proved  in  the  manner  prescribed 
in  Part  II. 

Illustrations. 

(a)  The  question  is,  whether  A  has  been  damaged  by  the 
negligence  of  his  servant  B  in  injuring  C's  horse. 

A  judgment  in  an  action,  in  which  C  recovered  damages 
against  A,  is  conclusive  proof  as  against  B,  that  C  did  re- 
cover  damages   against   A   in   that   action. — 1 

(b)  The  question  is.  whether  A,  a  ship  owner,  is  entitled  to 
recover  as  for  a  loss  by  capture  against  B  an  underwriter. 

A  judgment  of  a  competent  French  prize  court  condemning 
the  ship  and  cargo  as  prize,  is  conclusive  proof  that  the  ship 
and  cargo  were  lost  to  A  by  capture. — 2 

(c)  The  question  is,  whether  A  can  recover  damages  from 
B  for  a  malicious  prosecution. 

The  judgment  of  a  court  by  which  A  was  acquitted  Is  con- 
clusive proof  that  A  was  acquitted  by  that  court. — 3 


*  See  Note  at  end  of  Article  47. 


348  JUDGMENTS 

(d)  A,  as  executor  to  B,  sues  C  for  a  debt  due  from  C  to  B. 
The   grant  of  probate   to   A   is   conclusive  proof  as  against 

C,   that  A  is  B's  executor. — 4 

(e)  A  is  deprived  of  his  living  by  the  sentence  of  an  ec- 
clesiastical  court. 

The  sentence  is  conclusive  proof  of  the  fact  of  deprivation 
in  all  cases. — 5 

(f)  A  and  B  are  divorced  a  vinculo  matrimonii  by  a  sen- 
tence   of   the   divorce    court. 

The  sentence  is  conclusive  proof  of  the  divorce  In  all 
cases. — 6 

(g)  [R  was  adjudged  disqualified  from  holding  office  be- 
cause not  a  citizen,  in  a  contest  brought  by  D. 

R  could  not,  in  an  action  for  usurpation,  introduce  evidence 
that  his  mother  was  married  to  a  citizen  while  he  was  yet 
a   minor.] — 7 

LEGAL  EFFECT  OF  JUDGMENT. 

A  judgment  is  always  admissible  as  proof  of  its  ren- 
dition or  existence  when  that  fact  is  relevant. — Pico  v. 
Webster,  14  Cal.  202,  73  Am.  Dec.  647;  McCamant  v. 
Roberts,  66  Tex.  260,  1  S.  W.  260. 

Arkansas.  A  determination  in  a  bill  of  review  that  plain- 
tiffs, as  attorneys  for  defendants,  were  not  negligent  in  not 
finding  out  that  a  copy  of  a  judgment  offered  in  evidence 
in  a  certain  suit  in  which  plaintiffs  represented  defendants 
was  void  as  being  rendered  in  vacation,  is  conclusive  of 
the  question  of  negligence  in  an  action  for  services. — 
Boynton  v.  Brown  &  Mathes,  103  Ark.  513,  145  S.  W.  242. 
California.  Letters  of  administration  upon  the  estate  of 
a  person  who  is  not  dead  are  void. — Stevenson  v.  Superior 
Court,  62  Cal.   60. 

A  judgment  against  a  stockholder  in  a  suit  by  a  cor- 
poration to  enforce  his  liability  for  unpaid  stock  is  con- 
clusive as  to  such  liability  in  an  action  by  a  creditor  of 

1  Green  v.  New  River  Company,   4  T.  R.   590. 

2  Involved  in  Geyer  v.  Aguilar,  7  T.  R.   681. 

3  Leggatt  v.  Tollervey,  14  Ex.  301;  and  see  Caddy  v.  Bar- 
low,  1   Man.  &  Ry.   277. 

4  Allen  v.  Dundas,  37  R.  125-130.  In  this  case  the  will  to 
which   probate  had   been   obtained   was   forged. 

5  Judgment  of  Lord  Holt  in  Philips  v.  Bury,  2  T.  R.  3  46, 
351. 

6  Assumed  in  Needham  v.  Bremner,  L.  R.  1  C.  P.  582. 

7  [People  v.   Rodgers,  118  Cal.   393,   46   P.   740.] 


JUDGMENTS  349 

the  corporation.— Welch  v.  Sargent,  127  Cal.  72,  59  P.  319. 

A  judgment  exonerating  an  agent  from  negligence  may 
be  availed  of  by  the  principal. — Bradley  v.  Rosenthal,  154 
Cal.  420,  97  P.  875. 

On  an  issue  as  to  whether  defendant  in  replevin  had 
taken  the  property  under  a  writ  of  attachment,  the  judg- 
ment roll  in  the  attachment  suit  is  admissible  in  evidence 
though  plaintiff  was  not  a  party  thereto  and  the  judgment 
did  not  conclude  him. — Watrous  v.  Cunningham,  71  Cal. 
30,  11  P.  811. 

A  decree  annulling  a  marriage  is  a  judicial  determina- 
tion of  the  status  of  the  parties  thereto. — Eickhoff's  Es- 
tate, In  re,  101  Cal.  600,  36  P.  11. 

A  judgment  in  an  action  by  a  corporation  for  unpaid 
balance  on  a  subscription  to  stock  is  conclusive  in  an 
action  by  creditors  of  the  corporation  to  enforce  such 
stockholder's  liability.— Welch  v.  Sargent,  127  Cal.  72, 
59  P.  319. 

The  pleadings  and  final  judgment  in  an  action  claimed 
to  have  been  maliciously  brought  establish  the  fact  of 
final  judgment  only,  and  not  the  want  of  probable  cause. 
— McKenna  v.  Heinlen,  128  Cal.  17,  60  P.  668. 

A  decree  in  ejectment,  where  defendants  were  found 
to  be  the  owners  and  the  deed  under  which  plaintiff 
claimed  to  be  in  effect  a  mortgage,  is  conclusive  as  to  the 
fact  of  mortgage  in  a  suit  to  foreclose. — Meeker  v.  Sinis- 
ter, 4  Cal.  App.  294,  87  P.  1102. 

Kansas.  Final  judgment  in  attachment,  followed  by  sale 
and  sheriff's  deed,  is  sufficient  to  divest  the  title  of 
the  debtor,  and  not  open  to  attack  by  one  who  had  ob- 
tained no  lien  until  after  the  confirmation  of  the  sale. — 
Harrison  v.   Shaffer,   60  Kan.   176,   55  P.   881. 

A  decree  in  habeas  corpus,  where  the  direct  issue  was, 
whether  a  certain  adoption  was  illegal,  declaring  that 
the  applicant  was  the  mother  of  the  child,  is  conclusive 
as  to  its  motherhood,  where  the  decree  could  be  sustained 
only  on  the  theory  that  applicant  was  its  mother. — Bleak- 
ley  v.  Bleakley,  72  Kan.  462,  89  P.  906. 

Nebraska.  The  finding  and  judgment  of  a  court  granting 
a  woman  a  decree  of  divorce  on  the  ground  of  extreme 
cruelty,  are  not  competent  evidence  to  prove  that  she  was 


350  JUDGMENTS 

justified  in  living  apart  from  him,  in  an  action  brought 
by  a  third  person  against  the  husband  for  boarding  and 
lodging  the  wife.— Belknap  v.  Stewart,  38  Neb.  304,  56 
N.  W.   881. 

A  judgment  in  favor  of  a  county  against  its  clerk  for 
fees  improperly  retained  by  him  as  such  officer  may  be 
introduced  in  evidence  in  an  action  for  libel  brought  by 
such  clerk  against  a  resident  taxpayer  of  the  county, 
for  the  purpose  of  proving  the  fact  of  such  shortage. — 
Sheibley  v.  Fales,  81  Neb.  795,  116  N.  W.  1035. 

The  decree  in  a  suit  by  an  owner  of  land  in  an  irriga- 
tion district  to  enjoin  collection  of  taxes  and  to  cancel 
bonds  issued  by  the  district,  determining  the  validity  of 
the  bonds,  is  conclusive,  and  estops  another  landowner 
from  raising  the  same  question. — Orcutt  v.  McGinley,  96 
Neb.  619,  14S  N.  W.   586. 

New  Mexico.  Where,  in  quo  warranto,  defendant  was 
adjudged  to  have  no  title  to  an  office,  the  judgment  is  con- 
clusive in  an  action  brought  by  the  rightful  holder  for  the 
fees  received  by  defendant  while  he  was  unlawfully  in 
the  incumbency  of  the  office.— Sandoval  v.  Allbright,  14 
N.   M.   345,    93    P.   717. 

North  Dakota.  A  judgment  regularly  entered  by  a  court 
of  competent  jurisdiction,  in  the  absence  of  fraud  or 
collusion,  is  conclusive  evidence  of  the  debt  and  amount 
in  an  action  to  try  title  by  the  judgment  creditor  against 
an  alleged  fraudulent  grantee  of  the  debtor. — Salemonson 
v.  Thompson,  13  N.  D.  182,  101  N.  W.  320. 
Oregon.  In  an  action  for  false  representations  as  to  land 
conveyed  by  a  third  party  to  plaintiffs,  the  judgment  roll 
in  a  former  action  is  competent  evidence  that  the  third 
party  had  no  title,  though  the  present  defendants  were 
not  parties.— Cobb  v.  Peters,  68  Or.  14,  136  P.  656. 

A  decree  setting  aside  a  deed  between  defendants  as 
fraudulently  given  is  not  competent  to  prove  a  want  of 
consideration  as  between  defendants,  who  made  no  claims 
therein  adverse  to  each  other. — Crow  v.  Crow,  70  Or. 
534,  139  P.  851. 

Texas.  Judgments  are  always  admissible  to  show  that  a 
certain  judgment  was  pronounced,  even  as  against 
strangers.— McCamant  v.  Roberts,  66  Tex.  260,  1  S.  W.  260. 


JUDGMENTS  351 

One  who  purchases  property  subject  to  a  landlord's 
lien  for  rent  of  the  premises  upon  which  it  was  situated 
cannot  dispute  the  amount  of  the  judgment  recovered  by 
the  landlord  upon  which  a  distress  warrant  was  issued. — 
Lehman  v.  Stone,  (Tex.  App.),  16  S.  W.  784. 

Where  plaintiff  bought  machinery  worthless  for  the 
purpose  for  which  it  was  sold,  and  sued  to  recover  cash 
paid  as  part  of  the  purchase  price,  and  to  recover  a  sum 
represented  by  the  amount  of  a  judgment  recovered 
against  him  by  an  innocent  purchaser  of  notes  given  for 
the  balance  of  the  purchase  price,  it  is  no  objection  to 
the  introduction  of  the  judgment  in  evidence  that  defend- 
ant was  not  a  party  to  it. — Southern  Gas  &  Gasoline  En- 
gine Co.  v.  Peveto,  (Tex.  Civ.  App.),  150  S.  W.  279. 
Utah.  A  judgment  rendered  by  a  court  having  jurisdic- 
tion of  subject  matter  and  of  the  parties  is,  in  the  absence 
of  a  plea  and  proof  that  it  was  obtained  by  fraud  or  col- 
lusion, conclusive  as  to  the  relation  of  debtor  and  creditor, 
and  the  amount  of  the  indebtedness,  not  only  as  between 
the  parties,  but  also  as  to  third  parties.  (Action  to  sub- 
ject property  of  a  corporation  selling  out  to  another  to 
payment  of  plaintiff's  judgment.) — Cooper  v.  Utah  Light 
&  R.  Co.,  35  Utah  578,  102  P.  202. 

A  judgment  is  conclusive  as  to  the  relation  of  debtor 
and  creditor  and  the  amount  of  indebtedness,  not  only  be- 
tween the  parties  but  also  as  to  third  persons,  in  a  subse- 
quent suit  where  such  relation  and  indebtedness  are  called 
in  question. — Welch  v.  Utah  Ass'n  of  Credit  Men,  40  Utah 
519,   121  P.  974. 

Washington.  Final  judgment  for  defendant  in  an  attach- 
ment suit  was  conclusive  evidence  that  the  attachment 
was  wrongful,  in  a  suit  for  damages  on  account  thereof. — 
McGill  v.   W.   P.  Fuller  &   Co.,   4*  Wash.   615,   88   P.  1038. 

A  purchaser  of  land  suing  the  vendor  for  false  repre- 
sentations as  to  title  may  offer  in  evidence  a  judgment  in 
a  suit  brought  against  him  for  breach  of  contract  by  a 
contractor  to  whom  he  had  a  contract  for  a  building 
thereon,  to  show  the  fact  that  a  judgment  had  been  ren- 
dered and  for  what  purpose  the  suit  was  brought,  but  not 
to  show  the  grounds  upon  which  recovery  was  had. — 
Curtley  v.  Security  Savings  Society.   If,  Wash.  50,  89  P.  180. 


352  JUDGMENTS 

Article  41. 

judgments  conclusive  as  between  parties  and  privies  of 

facts  forming  ground  of  judgment. 

Every  judgment  is  conclusive  proof  as  against 
parties  and  privies  of  facts  directly  in  issue  in  the 
case,  actually  decided  by  the  court,  and  appearing 
from  the  judgment  itself  to  be  the  ground  on 
which  it  was  based ;  unless  evidence  was  admitted 
in  the  action  in  which  the  judgment  was  delivered 
which  is  excluded  in  the  action  in  which  that 
judgment  is  intended  to  be  proved,  (a) 

Illustrations. 

(a)  The  question  ;s,  whether  C,  a  pauper,  is  settled  in  par- 
ish A  or  parish  B. 

D  is  the  mother  and  E  the  father  of  C.  D,  E  and  several 
or  their  children  were  removed  from  A  to  B  before  the  ques- 
tion as  to  C's  settlement  arose,  by  an  order  unappealed 
against,    which    order    described   D   as    the    wife    of   E. 

The  statement  in  the  order  that  D  was  the  wife  of  E  is 
conclusive  as   between  A  and   B. — 1 

(b)  A  and  B  each  claim  administration  to  the  goods  of  C, 
deceased. 

Administration  is  granted  to  B,  the  judgment  declaring 
that,  as  far  as  appears  by  the  evidence,  B  has  proved  himself 
next  of  kin. 

Afterwards  there  is  a  suit  between  A  and  B  for  the  distri- 
bution of  the  effects  of  C.  The  declaration  in  the  first  suit 
is  in  the  second  suit  conclusive  proof  as  against  A  that  B  is 
nearer  of  kin  to  C  than  A. — 2 

(c)  A  company  sues  A  for  unpaid  premium  and  calls.  A 
special  case  being  stated  in  the  Court  of  Common  Pleas,  A 
obtains  judgment  on  the  ground  that  he  never  was  a  share- 
holder. 

a  R.  v.  Hutchins,  L.  R.  5  Q.  B.  D.  353,  supplies  a  recent 
illustration  of  this  principle. 

1  R.  v.  Hartington  Middle  Quarter,  4  E.  &  B.  780;  and  see 
Flitters  v.  Allfrey,  L.  R.  10  C.  P.  29;  and  contrast  Dover  v. 
Child,  L.  R.   1  Ex.  Div.   172. 

2  Barrs  v.  Jackson,  1  Phill.  582,  587,  588;  Sears  v.  Dacey, 
122  Mass.  388;  but  see  Mass.  Gen'l  Hospital  v.  Fairbanks, 
129  Mass.  78.  As  to  judgment  of  nonsuit,  see  Homer  v. 
Brown,    16   How.    354. 


JUDGMENTS  353 

The  company  being  wound  up  in  the  Court  of  Chancery,  A 
applies  for  the  repayment  of  the  sum  he  had  paid  for  pre- 
mium and  calls.  The  decision  that  he  never  was  a  share- 
holder is  conclusive  as  between  him  and  the  company  that  he 
never  was  a  shareholder,  and  he  is  therefore  entitled  to  re- 
cover the  sums  he  paid. — 3 

(d)  A  obtains  a  decree  of  judicial  separation  from  her  hus- 
hand  B,  on  the  ground  of  cruelty  and  desertion,  proved  by 
her  own  evidence. 

Afterwards  B  sues  A  for  dissolution  of  marriage  on  the 
ground  of  adultery,  in  which  suit  neither  B  nor  A  can  give 
evidence.  A  charges  B  with  cruelty  and  desertion.  The  de- 
cree in  the  first  suit  is  deemed  to  be  irrelevant  in  the  sec- 
ond.— 4 

(e)  [A,  having  a  contract  of  employment  for  one  year  at 
$1,500,  was  wrongfully  discharged,  and  after  being  idle  two 
months,  brought  suit  and  recovered  damages  for  wages  ac- 
crued. Later  he  brought  action  for  wages  accrued  after  the 
institution  of  the  first  suit. 

The  judgment  in  the  first  action  is  a  bar  to  the  recov- 
ery.]— 5 

(f)  [The  holder  of  an  overdue  note,  secured  by  second 
mortgage,  was  made  party  to  a  suit  to  foreclose,  brought  by 
a  prior  mortgagee,  and  failed  to  enforce  his  rights  to  share 
in  the  proceeds  of  sale  or  for  a  deficiency  judgment. 

He  could  not  thereafter  maintain  a  suit  on  the  note.] — 6 

(g)  [A  wife  obtained  a  divorce  on  the  ground  of  an  assault 
upon  her,  and  afterwards  he  was  prosecuted  for  the  same 
assault. 

The  judgment  in  the  divorce  case  was  inadmissible  upon 
the   criminal    trial.] — 7 

(h)  [In  a  proceeding  to  condemn  land  of  plaintiff  for  an 
irrigating  canal  and  reservoir  he  was  awarded  damages  for 
land  taken,  and  also  an  additional  sum  for  damages  to  land 
not  taken. 

He  could  not  thereafter  in  another  suit  recover  for  injuries 
to  his  land  arising  from  leakage  from  such  canal  and  reser- 
voir, where  negligence  or  unskillful  construction  was  not 
shown.] — 8 

(i)  [A  sheriff  acting  under  an  attachment  writ  levied  upon 
part  of  a  stock  of  goods,  and  took  and  retained  possession 
of  the  whole  stock,  and  afterwards  levied  upon  other  portions 
of  the  stock  under  other  attachments.     Thereafter   the   own- 

3  Bank  of  Hindustan,  &c,  Alison's  Case,  L.  R.  9  Ch.  App.  24. 

4  Stoate  v.  Stoate,  2  Sw.  &  Tr.  223. 

5  [Kahn  v.   Kahn,   L' i    Neb.   709,   40  N.  W.   135.] 

6  [Brown  v.  Willis,   67   Cal.    235,   7  P.   682.] 

7  [Dunagain  v.   State,  38  Tex.  Cr.  R.   614,    14   S.  W.   148.] 

8  [Denver  City  Irr.  &  Water  Co.  v.  Mlddaugh,  12  Colo.  434. 
21   P.    565.] 


354  JUDGMENTS 

ers  of  the  goods  brought  suit  for  damages  for  conversion  of 
goods  taken  under  the  first  attachment,  and  for  breaking  up 
their  business,   recovering  judgment  therefor. 

This  judgment  was  held  a  bar  to  further  suits  for  dam- 
ages arising  from  the  taking  of  goods  under  the  other  at- 
tachments.]— 9 

(j)  [In  a  personal  injury  case  the  plaintiff  had  assigned  a 
one-third  interest  in  the  cause  of  action  to  his  attorneys. 

The  judgment  bound  them,  though  they  failed  to  become 
parties.] — 10 

CONCLUSIVENESS    IN    GENERAL. 

A  judgment  rendered  by  a  court  having  jurisdiction  of 
the  parties  and  of  the  subject  matter,  as  between  such 
parties  conclusively  settles  all  questions  litigated,  unless 
subsequently  reversed  or  modified. — Union  Pac.  Ry.  Co. 
v.  McCarty,  8  Kan.  125;  Dillon  v.  Chicago,  K.  &  N.  R.  R. 
Co.,  58  Neb.  472,  78  N.  W.  927;  Davis  v.  Davis,  24  S.  D.  474, 
124  N.  W.  715;  Pratt  v.  Ratliff,  100  Okl.  168,  61  P.  523; 
Love  v.  McGill,  41  Tex.  Civ.  App.  471,  9  S.  W.  246;  Jensen 
v.  Montgomery,  29  Utah  89,  80  P.  504;  Bond  v.  Chapman, 
34  Wash.  606,  76  P.  97;  Hawkins  v.  Reber,  81  Wash.  79, 
142  P.  432. 

California.  A  record  is  not  conclusive  as  to  the  truth  of 
any  allegations  which  were  not  material  and  traversable; 
but  as  to  things  material  and  traversable  it  is  conclusive 
and  final.  And,  as  to  questions  thus  essential  and  thus 
determined,  the  judgment  is,  as  a  plea  in  bar  or  as  evi- 
dence, conclusive  between  the  same  parties,  upon  the 
same  matter  everywhere. — Wixson  v.  Devine,  67  Cal.  341, 
7  P.  776. 

A  judgment  for  defendant  as  to  its  right  to  divert  flood 
waters  of  a  stream  does  not  conclude  plaintiff  from  main- 
taining an  action  to  prevent  defendant  from  diverting  the 
natural  flow  of  the  stream  or  of  its  tributaries. — San 
Joaquin  &  King's  River  Canal  &  Irr.  Co.  v.  Fresno  Flume 
&  Irr.  Co.,   169  Cal.  174,  146  P.  426. 

In  the  absence  of  fraud,  a  judgment,  though  wrong,  is 
a  bar  to  a  subsequent  action. — Rauer  v.  Rynd,  27  Cal. 
App.   556,   150  P.   780. 

9  [Burdge  v.  Kelchner,   66   Kan.   642,   72  P.   232.] 

10  [Hughes-Buie  Co.  v.  Mendoza,  (Tex.  Civ.  App.),  156 
S    W.    328.] 


JUDGMENTS  355 

Kansas.  A  judgment  is  conclusive  only  so  far  as  it  de- 
termines matters  put  in  issue  or  admitted  by  the  plead- 
ings.—New  v.  Smith,  86  Kan.  1,  119  P.  380. 
Oklahoma.  To  constitute  a  good  plea  of  res  judicata,  it 
must  appear  that  the  parties  or  their  privies  and  the 
subject  matter  must  be  the  same,  the  issues  must  be  the 
same  and  relate  to  the  same  subject  matter,  and  the 
capacities  of  the  persons  must  be  the  same  in  reference 
to  the  issues  between  them. — Alfrey  v.  Colbert,  44  Okl. 
246,  144  P.   179. 

A  judgment  which  is  not  binding  upon  a  party  is  not 
pleadable  as  res  judicata  by  him. — De  Watteville  v.  Sims, 
44   Okl.  708,  146   P.   224. 

NATURE  OF   ESTOPPEL  BY  JUDGMENT. 

New  Mexico.  A  judgment  or  decree  set  up  as  a  bar  by 
the  pleadings  or  relied  on  as  evidence  by  way  of  estoppel 
must  be  made  by  a  court  of  competent  jurisdiction  upon 
the  same  subject  matter  between  the  same  parties,  for 
the  same  purpose. — Board  Trustees  Sevilleta  De  La  Joya 
Grant  v.  Board  Trustees  Belen  Land  Grant,  20  N.  M.  145, 
146  P.  959. 

Oklahoma.  The  essence  of  estoppel  by  judgment  is  that 
there  has  been  a  judicial  determination  of  a  fact,  and  the 
question  is,  has  there  been  such  determination,  and  not, 
upon  what  evidence  or  by  what  means  was  it  reached. — 
McDuffie  v.  Geiser  Mfg.  Co.,  41  Okl.  488,  138  P.  1029. 

A  judgment  will  not  ordinarily  support  a  plea  of  res 
judicata  until  it  has  been  entered. — De  Watteville  v.  Sims, 
44  Okl.  708,   146   P.   224. 

NATURE  OF  ACTION. 
An  action  on  the  quantum  meruit  is  not  barred  by  a 
judgment  in  an  action  brought  to  recover  on  an  express 
contract.— Horton  v.  Emerson,  30  N.  D.  258,  152  N.  W. 
529;  Hawkins  v.  Reber,  81  Wash.  79,  142  P.  432;  Mallory  v. 
City  of  Olympia,  83  Wash.  499,  145  P.  627. 
Texas.  Judgment  in  favor  of  a  bank  in  a  suit  on  a  con- 
tract, where  it  was  held  that  its  receiver  had  no  power 
to  execute  it,  is  no  bar  to  an  action  on  quantum  meruit. — 
Henrietta  Nat.  Bank  v.  Barrett,  (Tex.  Civ.  App),  25  S. 
W.  456. 


356  JUDGMENTS 

NATURE    OF    DECISION. 

Where  a  defendant  is  dismissed  from  an  action  before 
judgment  the  effect  of  the  dismissal  is  the  same  as  if 
he  had  never  been  a  party  and  he  is  not  bound  by  the 
judgment,  the  effect  of  the  dismissal  is  the  same  as  if 
P.  278;  Holt  Mfg.  Co.  v.  Collins,  154  Cal.  265,  97  P.  516; 
Fred  Krug  Brewing  Co.  v.  Healey,  71  Neb.  662,  101  N.  W. 
729;  Coughanour  v.  Hutchinson,  41  Or.  419,  69  P.  68; 
Hart  v.  Meredith,  27  Tex.  Civ.  App.  271,  65  S.  W.  507. 

A  former  judgment  in  order  to  be  a  bar  must  have  been 
a  decision  of  the  merits  of  the  cause. — Cooper  v.  McCoy, 
116  Ark.  501,  173  S.  W.  412;  Spence  v.  Hull,  75  Or.  267, 
146  P.  95. 

A  judgment  on  the  merits  is  only  conclusive  between 
the  parties  when  the  question  to  be  determined  in  the  sec- 
ond action  is  the  same  question  judicially  settled  in  the 
first,  and  such  judgment  does  not  operate  as  an  estoppel 
with  respect  to  matters  which  could  not  have  been  proper- 
ly litigated  under  the  issues. — Ramsbottom  v.  Bailey,  124 
Cal.  259,  56  P.  1036;  Water  Supply  &  Storage  Co.  v.  Lari- 
mer &  Weld  Irr.  Co.,  25  Colo.  87,  53  P.  386;  Cassell  v. 
Morrow,  13  S.  D.  109,  82  N.  W.  418;  Pitts  v.  Oliver,  13  S. 
D.  561,  83  N.  W.  591;  Walraven  v.  Farmers'  &  Merchants' 
Nat.  Bank,  (Tex.  Civ.  App.),  53  S.  W.  1028;  Harding  v. 
Atlantic  Trust  Co.,  26  Wash.  536,  67  P.  222. 
Colorado.  A  judgment  of  nonsuit,  or  mere  dismissal,  is 
no  bar  to  another  action  for  the  same  cause. — Hallack  v. 
Loft,  19  Colo.  74,  34  P.  568. 

Kansas.  Judgments  vacating  attachments  sued  out  by 
creditors  will  not  prevent  a  re-examination  of  the  same 
subject  matter  in  an  action  of  replevin  for  the  same  goods 
taken  by  a  sheriff  under  execution  by  such  creditors. — 
Miami  County  Nat.  Bank  v.  Barkalow,  53  Kan.  68,  35 
P.   796. 

A  judgment  by  default  based  on  actual  notice  to  de- 
fendant is  as  conclusive  against  him  upon  every  matter 
admitted  by  the  default  as  if  he  had  personally  appeared 
and  contested  plaintiff's  right. — Garrett  Biblical  Institute 
v.  Minard,  82  Kan.  338,  108  P.  80. 

A  judgment  of  dismissal  upon  settlement,  with  consent 
of  plaintiff,   is   a   bar   to   further  action   on   the   claim. — 


JUDGMENTS  357 

Robinson  v.  Chicago,  R.  I.  &  P.  R.  Co.,  96  Kan.  137,  150 
P.  636. 

Nebraska.  In  an  action  of  replevin  where  judgment  is 
rendered  in  favor  of  defendant  solely  upon  the  ground 
that  plaintiff's  petition  does  not  state  a  cause  of  action, 
such  judgment  is  not  a  bar  to  a  subsequent  proceedings 
to  establish  plaintiff's  right  of  property  or  right  of  pos- 
session or  to  establish  any  lien  he  may  have  upon  the 
property. — Pennington  County  Bank  v.  Bauman,  85  Neb. 
226,   122   N.   W.   845. 

A  judgment  upon  a  verdict  directed  by  the  court  on 
motion  of  defendant  is  conclusive. — Reams  v.  Sinclair, 
97  Neb.  542,  150  N.  W.  826. 

Oklahoma.  A  mere  memorandum  opinion  of  a  court  is 
not  a  judgment  sufficient  to  support  a  plea  of  res  judicata. 
-De  Watteville  v.  Sims,  44  Okl.  708,  146  P.  224. 

A  judgment  on  demurrer  unappealed  from  is  conclusive 
of  the  matters  and  things  confessed  by  the  demurrer. — 
Corrugated  Culvert  Co.  v.  Simpson  Tp.,  (Okl.),  151  P.  854. 

SCOPE  OF  INQUIRY. 
California.  For  the  purpose  of  determining  whether  the 
issues  involved  in  a  former  suit  constitute  a  bar  to  a  sec- 
ond action,  reference  will  be  had  to  a  comparison  of  the 
records  of  the  two  cases. — Ahlers  v.  Smiley,  11  Cal.  App. 
343,  104  P.  997. 

Nevada.  Where  the  pleadings  do  not  upon  their  face 
show  the  issue  tried  and  determined  between  the  parties, 
the  same  may  be  shown  by  extrinsic  evidence. — Gulling 
v.  Washoe  County  Bank,  29  Nev.  257,  89  P.  25. 
Oklahoma.  The  inquiry  of  res  adjudicata  is  not  limited 
to  the  mere  formal  judgment.  It  extends  to  the  plead- 
ings, the  verdict  and  the  findings. — McDuffle  v.  Geiser  Mfg. 
Co.,  41  Okl.  488,   138  P.   1029. 

MATTERS  CONCLUDED. 
Arizona.  Appellant  unsuccessfully  contested  the  appoint- 
ment of  an  administrator  on  the  ground  that  his  deceased 
brother  was  a  non-resident  and  owned  no  property  in  the 
territory.  In  an  action  against  the  administrator  for 
specific  performance  of  a  contract  for  the  sale  of  land 
appellant  could  not  object  to  the  jurisdiction  of  the  court 


358  JUDGMENTS 

on  the  ground  of  non-residence. — Scarry's  Estate,  In  re, 
1,5  Ariz.  246,  137  P.  868. 

Arkansas.  A  judgment  against  a  charitable  association 
does  not  necessarily  conclude  the  question  as  to  whether 
its  property  is  subject  to  execution. — Woman's  Christian 
Nat.  Library  Ass'n  v.  Fordyce,  73  Ark.  625,  86  S.  W.  417. 
Kansas.  The  fact  that  others  were  parties  defendant  to 
the  record,  and  bound  by  the  judgment,  does  not  make 
the  same  less  conclusive.  (Suit  to  recover  personal  prop- 
erty alleged  to  have  been  transferred  to  defendant  in 
fraud  of  creditors  barred  by  judgment  in  former  action 
affirming  validity  of  transfer  of  real  estate  in  the  same 
transaction,  in  which  defendant's  wife  was  made  a  party. 
—Peterson  v.  Warner,  6  Kan.  App.  298,  50  P.  1091. 

A  judgment  affirming  validity  of  transfer  of  property 
by  a  debtor  is  conclusive  upon  the  parties  thereto  in  re- 
spect to  all  the  property  covered  by  that  entire  trans- 
action, although  but  part  thereof  was  the  subject  matter 
of  the  former  action.  (Real  estate,  together  with  personal 
property  transferred  at  one  time). — Peterson  v.  Warner, 
6  Kan.  App.  298,  50  P.  1091. 

Montana.  A  decree  determining  the  priority  of  rights  to 
the  water  of  a  stream  is  conclusive  as  to  the  right  to 
take  water  from  a  lake  tributary  thereto,  though  the  exist- 
ence of  the  lake  was  not  then  known  to  the  parties. — Ryan 
v.  Quinlan,  45  Mont.  521,  124  P.  512. 

Nebraska.  A  plea  of  res  judicata  in  tax  cases  is  limited 
to  the  taxes  for  the  years  actually  litigated. — Chicago,  B. 
&  Q.  Ry.  Co.  v.  Cass  County,  72  Neb.  489,  101  N.  W.  11. 
New  Mexico.  A  judgment  for  rents  and  profits  during 
the  pendency  of  an  ejectment  action  is  not  a  bar  to  a 
further  suit  for  rents  and  profits  covering  a  period  anterior 
to  that  covered  by  the  former  recovery. — Neher  v.  Armijo, 
11  N.  M.  67,  66  P.  517. 

Texas.  An  action  for  false  representations  in  the  sale  of 
cigars  may  be  maintained  although  the  seller  has  recov- 
ered judgment  in  an  action  for  their  price. — McCord- 
Collins  Commerce  Co.  v.  Levi,  21  Tex.  Civ.  App.  109,  50 
S.  W.   606. 

Judgment  upon  a  vendor's  lien  note  or  a  debt  se- 
cured by  mortgage  does  not  bar  a  subsequent  suit  to  fore- 


JUDGMENTS  359 

close  the  lien. — Middleton  v.  Nibling,  (Tex.  Civ.  App.), 
142  S.  W.  968. 

Washington.  Judgment  adverse  to  plaintiff  upon  an  al- 
leged contract  arising  out  of  a  bid  by  it  for  land  offered 
at  public  sale  by  a  county  bars  a  subsequent  action  for 
specific  performance  of  the  contract  on  the  ground  of  bad 
faith  of  officers  in  not  striking  off  the  land  to  plaintiff. — 
McPherson  Bros.  Co.  v.  Okanogan  County,  61  Wash.  239, 
112  P.  267. 

Matters  Actually  Litigated  and  Determined. 
Arkansas.  To  render  a  judgment  in  one  suit  conclusive 
of  a  matter  sought  to  be  litigated  in  another,  it  must  ap- 
pear that  the  particular  matter  sought  to  be  concluded 
was  raised  and  determined  in  the  prior  suit. — Fogel  v. 
Butler,  96  Ark.  87,  131  S.  W.  211. 

California.  Where  the  amount  paid  by  defendant  to  plain- 
tiff for  a  release  from  damages  for  injuries  is  not  con- 
sidered in  a  subsequent  judgment  for  said  injuries,  de- 
fendant is  not  estopped  to  recover  the  sum  so  paid. — 
Southern  Pac.  Co.  v.  Edmunds,  168  Cal.  415,  143  P.  597. 
Kansas.  A  judgment  which  may  have  resulted  from  a 
determination  of  either  one  of  two  or  more  separate  issues 
does  not  constitute  an  adjudication  as  to  either,  where  it 
is  not  shown  upon  which  it  was  in  fact  based.  (Action 
for  rent  by  owner  of  tax  deed.  Judgment  for  defendant, 
but  not  stating  whether  tax  deed  was  void  or  occupancy 
was  such  as  created  obligation  on  defendant's  part  to 
payment,  does  not  bar  action  for  ejectment  by  owner  of 
tax  deed.) — Routh  v.  Bd.  Com'rs  Finney  County,  84  Kan. 
25,  113  P.  397. 

Nebraska.  Where  plaintiff's  title  to  premises  was  quieted 
as  against  a  certain  deed  adjudged  never  to  have  been 
legally  delivered  to  defendants,  the  latter  are  not  con- 
cluded from  asserting  title  or  rights  under  other  contracts. 
— Wetherell  v.  Adams.  80  Neb.  589,  116  N.  W.  861. 
Nevada.  In  a  suit  for  foreclosure  the  holder  of  a  legal 
title  and  a  subsequent  mortgagee  answered  the  complaint 
but  did  not  serve  answers  nor  set  up  cross  bills  against 
each  other.  The  issue  as  to  the  right  of  such  mortgagee 
as  against  the  title  holder  having  been  actually  tried  by 


360  JUDGMENTS 

consent,  a  judgment  on  such  issue  is  conclusive. — Gulling 
v,  Washoe  County  Bank,  29  Nev.  257,  89  P.  25. 
Texas.  Every  point  which  has  been  expressly  or  by 
necessary  implication  placed  in  issue,  which  must  have 
been  necessarily  decided  in  order  to  support  the  judgment, 
is  conclusive.  (It  being  decided  in  a  divorce  action  that 
certain  lots  were  the  separate  property  of  the  wife,  the  hus- 
band could  not  thereafter  maintain  an  equitable  action  to 
enforce  an  equitable  lien  for  one-half  the  amount  expended 
upon  improvements  thereon  out  of  community  funds.) — 
Shook  v.  Shook,  (Tex.  Civ.  App.),  145  S.  W.  699. 
Washington.  Notwithstanding  the  fact  that  certain  ques- 
tions might  have  been  tried  in  the  former  case,  if  it 
affirmatively  appears  that  they  were  not  tried,  the  doc- 
trine of  res  judicata  will  not  apply.— International  Devel. 
Co.  v.  Clemans,  66  Wash.  620,  120  P.  79. 

Matters  Which  Might  Have  Been   Litigated. 

A  judgment  is  conclusive  not  only  upon  matters  which 
were  actually  litigated,  but  also  upon  those  which  might 
have  been,  if  within  the  scope  of  the  issues. — Pulaski 
County  v.  Hill,  97  Ark.  450,  134  S.  W.  973;  Allen  v.  Allen, 
159  Cal.  197,  113  P.  160;  Smith  v.  Cowell,  41  Colo.  178,  92 
P.  20;  Triska  v.  Miller,  86  Neb.  503,  125  N.  W.  1070;  Rich- 
ardson v.  Trout,  (Tex.  Civ.  App.),  135  S.  W.  677;  Olsen  v. 
Title  Trust  Co.,  58  Wash.  599,  109  P.  49;  State  v.  Superior 
Court,  62  Wash.  556,  114  P.  427. 

The  rule  that  matters  which  might  have  been  litigated 
are  concluded  by  the  judgment  does  not  apply  to  a  case 
where  the  matter  relied  on  was  not  incidental  to  the  de- 
termination, but  was  a  distinct  and  separate  cause  of 
action  which  the  record  shows  was  left  undetermined: 
California:  Coats  v.  Coats,  160  Cal.  671,  118  P.  441  (de- 
cree of  annulment  of  marriage,  without  determining  prop- 
erty rights,  no  bar  to  suit  therefor) ;  Jacoby  v.  Peck,  23 
Cal.  App.  363,  138  P.  104  (judgment  for  installments  of 
debt  not  a  bar  to  action  for  later  installments,  though 
they  might  have  been  included  in  the  judgment  by  sup- 
plementary complaint). 

Colorado:  Johnson  v.  Johnson,  20  Colo.  143,  36  P.  898 
(action  and  cross-complaint  for  divorce,  both  parties  ask- 
ing for  determination  of  title  to  certain  property.     Decree 


JUDGMENTS  361 

granting  divorce,  leaving  question  of  property  undeter- 
mined held  not  to  bar  husband  from  action  to  establish 
a  resulting  trust  in  wife,  upon  same  facts  as  set  up  in 
divorce  action). 

California.  One  who  has  failed  in  an  action  determining 
the  title  and  right  to  possession  of  certain  property  can 
not  in  another  suit  claim  under  a  deed  which  he  might 
have  set  up  in  the  former  action. — Nemo  v.  Farrington,  7 
Cal.  App.  443,  94  P.  874. 

Motion  to  quash  service  of  summons  on  foreign  cor- 
poration on  the  ground  that  the  person  upon  whom  process 
was  served  was  not  the  proper  agent  upon  whom  to  make 
service.  In  a  suit  in  the  foreign  state  upon  the  judgment 
thereafter  rendered,  defendant  could  not  set  up  any  other 
grounds  whereby  the  summons  in  the  former  suit  snould 
have  been  quashed. — Suisun  Lumber  Co.  v.  Fairfield  School 
Dist,  19  Cal.  App.  587,  127  P.  349. 

Colorado.  A  judgment  between  parties  is  conclusive  not 
only  as  to  the  matters  which  were  in  fact  determined, 
but  as  to  all  other  matters  which  might  have  been  liti- 
gated as  incidental  or  essentially  connected  with  the  sub- 
ject matter  of  the  litigation,  whether  the  same  were  or 
were  not,  as  a  matter  of  fact,  considered. — Bushnell  v. 
Larimer  &  Weld  Irr.  Co.,  56  Colo.  92,  136  P.  1017. 
Oklahoma.  A  regular  judgment,  whilst  it  remains  in 
force,  is  conclusive  as  to  every  matter  that  might  have 
been  given  in  evidence  in  the  action  in  which  it  was 
rendered,  except  matters  growing  out  of  separate  and 
individual  causes  of  action  which  might  have  been  pleaded 
in  offset.  (Reasonableness  of  telephone  rates.) — Pioneer 
Tel.  &  Tel.  Co.  v.  State,  40  Okl.  417,  138  P.  1033. 

A  judgment  of  a  court  of  competent  jurisdiction  de- 
livered upon  the  merits  of  a  cause  is  final  and  con- 
clusive between  the  parties  in  a  subsequent  action  upon 
the  same  cause,  not  only  as  to  all  matters  actually  liti- 
gated and  determined  in  the  former  action,  but  also  as  to 
every  ground  of  recovery  or  defense  which  might  have 
been  presented  and  determined  therein.  (Decree  direct- 
ing cancellation  of  two  deeds  from  incompetent  bars 
action  on  another  deed  to  same  land  to  same  party  from 


362  JUDGMENTS 

incompetent  which  might  have  been  set  up  in  same 
action.)—  Alfrey  v.  Colbert,  44  Okl.  246,  144  P.  179. 
South  Dakota.  In  the  absence  of  proof  that  a  particular 
issue  was  actually  tried  and  determined  in  arriving  at  a 
former  judgment,  it  is  conclusive  only  as  to  those  facts 
without  existence  and  proof  of  which  it  could  not  have 
been  rendered.  (Judgment  in  suit  by  mortgagee  to  quiet 
title  against  the  mortgagor,  where  the  mortgagee  in  his 
reply  set  up  the  statute  of  limitations,  does  not  estop 
him  from  pleading  the  statute  in  a  suit  to  foreclose,  where 
it  does  not  appear  from  the  judgment  that  the  statute  was 
considered.)— Kaufmann  v.  Barton,  23  S.  D.  442,  122  N. 
W.   416. 

Texas.  A  former  judgment  Is  only  conclusive  of  such 
matters  as  were  essential  to  be  determined  before  the 
judgment  could  be  rendered.  (Judgment  for  title  and  pos- 
session not  conclusive  as  to  right  to  lien  securing  a  pur- 
chase money  note.) — Manning  v.  Green,  56  Tex.  Civ.  App. 
579,  121  S.  W.  721. 

In  order  for  a  suit  to  be  res  judicata  as  to  the  mat- 
ter involved  in  a  subsequent  suit,  it  must  appear  that  the 
very  point  in  issue  was  adjudicated  in  the  former  suit,  or 
could  have  been  adjudicated  under  the  pleadings. — Mid- 
dleton  v.  Nibling,  (Tex.  Civ.  App.),  142  S.  W.  968. 
Washington.  In  an  action  between  the  same  parties  a 
judgment  therein  is  res  judicata  as  to  all  points  in  issue 
and  also  all  points  which  might  have  been  raised  and 
adjudicated.— Olson  v.  Title  Trust  Co.,  58  Wash.  599,  109 
P.  49;   Hawkins  v.  Reber,  81  Wash.  79,  142  P.  432. 

A  judgment  is  conclusive  of  the  questions  there  pre- 
sented or  which  might  have  been  presented. — Merz  v. 
Mehner,  67  Wash.  135,  120  P.  893. 

Judgment  in  a  suit  upon  a  contract  for  building  a  struc- 
ture bars  a  subsequent  action  for  damages  on  account  of 
delay,  negligence  and  other  matters  arising  out  of  the 
contract.— Perlus  v.  Silver,  71  Wash.  338,  128  P.  661. 
Matters  Which  Could  Not  Have  Been  Litigated. 
California.  One  holding  land  by  adverse  possession  could 
not  have  had  his  title  determined  in  probate  proceedings 
for  the  distribution  of  the  estate  of  which  such  land  had 
formed  a  part,  and  is  not  barred  by  the  judgment  in  such 


JUDGMENTS  363 

proceedings  from  maintaining  an  action  to  quiet  title. — 
Bath  v.  Valdez,  70  Cal.  350,  11  P.  724. 
Kansas.  A  decree  of  divorce  obtained  by  a  husband  in 
another  state  is  valid  as  to  the  status  of  the  parties,  but 
is  not  a  bar  to  an  action  by  the  wife  to  enforce  her  claim 
to  alimony  out  of  property  in  this  state  and  for  custody 
of  the  children. — Rodgers  v.  Rodgers,  56  Kan.  483,  43 
P.  779. 

Montana.  The  recovery  of  salary  during  the  time  of 
wrongful  removal  from  office  could  not  have  been  liti- 
gated in  mandamus  to  compel  restoration  to  office,  and 
judgment  in  such  proceeding  is  no  bar  to  an  action  to 
recover  such  salary. — Bailey  v.  Edwards,  47  Mont.  363, 
133  P.  1095. 

Nebraska.  A  judgment  in  replevin  determines  the  right 
of  possession  at  the  time  of  the  commencement  of  the  suit, 
and  is  not  inconsistent  with  the  right  of  the  defeated 
party  to  assert  a  right  of  possession  under  changed  con- 
ditions.— Bennington  County  Bank  v.  Bauman,  85  Neb. 
226,  122  N.  W.  848. 

Matters  Determined  By  General  Finding. 
Nebraska.  A  party  may  not  present  issues  for  determina- 
tion, and  avoid  the  effect  of  an  estoppel  by  withholding 
proof  thereof,  so  that  when  a  plaintiff  alleges  several  facts, 
the  proof  of  any  one  of  which  entitles  him  to  judgment 
and  there  is  a  general  finding  against  him,  it  will  be  con- 
clusively presumed  that  each  fact  so  averred  was  deter- 
mined against  him.— Slater  v.  Skirving,  51  Neb.  108,  70 
N.  W.  493. 

Different  Cause   of   Action. 
Nebraska.     A  right,  question  or  fact  distinctly  put  in  issue 
and  directly  determined  by  a  court  of  competent  jurisdic- 
tion  as   a   ground   of   recovery   cannot   be   disputed   in   a 
subsequent  suit  between  the  same  parties  or  their  privies, 
even  though  the  second  suit  is  for  a  different   cause  of 
action.— Chicago,  B.  &  Q.  R.  Co.  v.  Cass  County,  72  Neb. 
489,  101  N.  W.   11.  117  Am.  St.  R.  S06. 
Defenses  Neglected. 
Arkansas.     It   being  the  duty  of  an   administrator  to   set 
ui)  conversion  of  funds  by  widow  as  defense  to  award  of 


364  JUDGMENTS 

dower  on  final  settlement,  he  cannot  set  up  such  defense 
in  an  action  brought  by  her  for  failure  to  pay  the  amount 
awarded.— Briggs  v.  Manning,  80  Ark.  304,  97  S.  W.  289. 
California.  Motion  to  quash  service  of  summons  upon 
foreign  corporation  on  the  ground  that  the  person  upon 
whom  process  was  served  was  not  the  proper  agent  upon 
whom  to  make  service.  In  a  suit  in  the  foreign  state  upon 
the  judgment  thereafter  rendered,  defendant  could  not  set 
up  any  other  grounds  whereby  the  summons  in  the  for- 
mer suit. should  have  been  quashed. — Suisun  Lumber  Co. 
v.  Fairfield  School  Dist.,  19  Cal.  App.  587,  127  P.  349. 
Nebraska.  If  one  has  a  defense  which  he  neglects  to 
make,  it  is  at  his  peril,  and  this  is  as  true  as  to  adverse 
interests  between  co-defendants  as  between  plaintiff  and 
defendant,  where  rights  of  defendants  are  involved  in  the 
determination  of  the  controversy. — Orcutt  v.  McGinley, 
96  Neb.  619,  148  N.  W.  586. 

An  owner  of  land  in  an  irrigation  district  brought  suit 
to  enjoin  the  collection  of  taxes  and  to  cancel  its  bonds, 
making  the  bondholders  and  the  district  defendants.  The 
district,  not  contesting  the  validity  of  the  bonds,  was 
estopped  from  so  doing  as  against  the  bondholders  in  an- 
other suit.— Orcutt  v.  McGinley,  96  Neb.  619,  148  N.  W.  586. 
Utah.  Suit  by  policemen  wrongfully  discharged  for  salary 
due  for  a  certain  period.  The  city  having  failed  to  set  up 
in  a  suit  for  salary  during  a  prior  period  that  plaintiffs 
had  immediately  on  discharge  obtained  employment  else- 
where was  estopped  from  setting  the  fact  up  in  the  subse- 
quent action.— Everill  v.  Swan,  20  Utah  56,  57  P.  716. 

Judgment  on  Part  of  Cause  of  Action. 
Kansas.  Judgment  for  defendants  in  an  action  for  one 
month's  rent  of  leased  property  after  the  property  had 
burned  down  bars  a  later  action  for  conversion  of  part 
of  the  leased  property,  for  failure  to  insure,  and  for  negli- 
gence of  defendants  causing  the  fire. — Whittaker  v.  Haw- 
ley    30  Kan.  317. 

Where  a  creditor  splits  up  a  running  account  which  con- 
stitut.es  a  single  cause  of  action  and  recovers  upon  a  part 
of  the  same,  such  adjudication  constitutes  a  complete  bar 
to  a  recovery  on  the  remaining  portion  of  the  account. — 


JUDGMENTS  365 

Bolen  Coal  Co.  v.  Whittaker  Brick  Co.,  52  Kan.  747,  35 
P.  810. 

A  judgment  that  defendant  was  surety  on  one  of  a 
series  of  notes  to  secure  one  entire  debt,  and  was  released 
by  a  material  alteration  in  the  contract,  is  conclusive  in 
an  action  upon  the  other  notes. — Peru  Plow  &  Wheel  Co. 
v.  Ward,  6  Kan.  App.  289,  51  P.  805. 

Oregon.  A  decision  in  a  different  action  between  the  same 
parties  for  breach  of  contract  is  res  judicata  in  a  subse- 
quent action  for  a  different  breach  in  which  issues  re- 
lated to  that  decided  were  raised. — Krebs  Hop  Co.  v. 
Livesley,  55  Or.  227,  104  P.  3. 

Utah.  A  judgment  that  plaintiff  was  entitled  to  and  held 
an  office  as  policeman,  and  to  a  certain  installment  of 
salary,  is  conclusive  in  an  action  to  recover  a  subsequent 
installment.— Everill  v.  Swan,  20  Utah  56,  57  P.  716. 
Washington.  A  contract  provided  for  the  conveyance  to 
plaintiff  of  different  tracts  of  land,  and  on  failure  to  per- 
form plaintiff  brought  suit  for  specific  performance  as  to 
certain  lands.  The  judgment  therein  was  a  bar  to  an- 
other suit  to  compel  the  specific  performance  as  to  other 
lands  described  in  the  contract. — Collins  v.  Gleason,  47 
Wash.  62,  91  P.  566. 

Judgment  in  a  suit  upon  a  contract  for  building  a  struc- 
ture bars  a  subsequent  action  for  damages  on  account  of 
delay,  negligence  and  oth'er  matters  arising  out  of  the  con- 
tract.—Perlus  v.   Silver,  71  Wash.   338,   128  P.   661. 

Grounds  of  Judgment. 
Arizona.  A  right,  question  or  fact  distinctly  put  in  issue 
and  directly  determined  by  a  court  of  competent  juris- 
diction as  a  ground  of  recovery,  cannot  be  disputed  in  a 
subsequent  suit  between  the  same  parties  or  their  privies 
even  if  the  second  suit  is  for  a  different  cause  of  action. 
(Suit  for  rent  for  a  certain  year.  Defense  of  failure  to 
furnish  water  inadmissible,  the  question  having  been  de- 
termined adversely  to  defendants  in  a  suit  for  the  prior 
year's  rent.)— Stevens  v.  Wadleigh,  6  Ariz.  351,  57  P.  622. 
Kansas.  A  thing  contained  in  the  findings  or  the  verdict, 
but  not  included  in  or  confirmed  by  the  judgment,  cannot 
be  considered  as  an  adjudication  or  used  in  evidence  un- 
less  some   other   ground   can   be   found   for   its   use   than 


366  JUDGMENTS 

merely  that  it  is  contained  in  such  finding  or  verdict. — 
Mitchell  v.  Insley,  33  Kan.  654,  7  P.  201. 
Nebraska.  The  question  whether  a  certain  bridge  is  not 
"part  of  the  continuous  line  of  road,"  is  a  question  of  law 
and  not  a  question  of  fact  upon  which  an  estoppel  can 
be  predicated. — Chicago,  B.  &  Q.  R.  Co.  v.  Cass  County, 
72  Neb:  489,  101  N.  W.  11. 

If  the  liability  of  property  to  taxation  depends  upon  the 
existence  of  a  specific  fact,  and  that  fact  is  necessarily 
determined  in  one  litigation,  it  cannot  be  controverted 
by  the  same  parties  in  subsequent  litigation. — Chicago, 
B.  &  Q.  R.  Co.  v.  Cass  County,  72  Neb.  489,  101  N.  W.  11. 

Questions  For  Court. 
Oklahoma.  When  a  former  judgment  is  set  up  as  a  bar 
or  estoppel,  the  question  whether  there  is  such  an  identity 
of  the  parties  and  of  the  subject  matter  or  cause  of  action 
as  will  support  the  plea  of  res  judicata  is  a  question  of 
law  for  the  court,  when  it  is  determinable  from  an  inspec- 
tion of  the  record.— Alfrey  v.  Colbert,  44  Okl.  246,  144 
P.   179. 

Article  42. 
statements  in  judgments  irrelevant  as  between  stran- 
gers, except  in  admiralty  cases. 

Statements  contained  in  judgments  as  to  the 
facts  upon  which  the  judgment  is  based  are 
deemed  to  be  irrelevant  as  between  strangers,  or 
as  between  a  party,  or  privy,  and  a  stranger,  ex- 
cept (a)  in  the  case  of  judgment  of  Courts  of  Ad- 
miralty condemning  a  ship  as  prize.  In  such  cases 
the  judgment  is  conclusive  proof  as  against  all 
persons  of  the  fact  on  which  the  condemnation 
proceeded,  where  such  fact  is  plainly  stated  upon 
the  face  of  the  sentence. 

a  This  exception  is  treated  by  Lord  Eldon  as  an  objection- 
able anomaly  in  Lothian  v.  Henderson,  3  B.  &  P.  545.  See, 
too,  Castrique  v.  Imrie,  L.   R.   4  E.  &  I.   App.   434,   435. 


JUDGMENTS  367 

Illustrations. 

(a)  The  question  between  A  and  B  is,  whether  certain 
lands  in  Kent  had  been  disgavelled.  A  special  verdict  on  a 
feigned  issue  between  C  and  D  (strangers  to  A  and  B)  find- 
ing that  in  the  2d  Bdw.  VI.  a  disgavelling  Act  was  passed 
in  words  set  out  in  the  verdict  is  deemed  to  be  irrelevant. — 1 

(b)  The  question  is,  whether  A  committed  bigamy  by  mar- 
rying B  during  the  lifetime  of  her  former  husband,  C. 

A  decree  in  a  suit  of  jactitation  of  marriage,  forbidding  C 
to  claim  to  be  the  husband  of  A,  on  the  ground  that  he  was 
not  her  husband,   is  deemed  to  be  irrelevant. — 2 

(c)  The  question  is,  whether  A,  a  ship  owner,  has  broken 
a  warranty  to  B  an  underwriter,  that  the  cargo  of  the  ship 
whose  freight  was  insured  by  A  was  neutral  property. 

The  sentence  of  a  French  prize  court  condemning  ship  and 
cargo,  on  the  ground  that  the  cargo  was  enemy's  property,  is 
conclusive  proof  in  favor  of  B  that  the  cargo  was  enemy's 
property  (though  on  the  facts  the  court  thought  it  was  not.] 
—3 

(d)  [The  question  is,  whether  A  and  B  are  the  heirs  of  C. 
A  decree  of  a  court  in  Alaska,  distributing  the  estate  of  C 

in  that  territory  to  A  and  B,  reciting  that  they  were  the 
heirs  of  C,  is  irrelevant.] — 4 

STATEMENTS  IN  JUDGMENTS. 
California.  One  having  been  rightfully  elected  to  an 
office,  but  refused  admission  thereto  by  the  incumbent  on 
account  of  claimant's  election  being  contested  by  an  oppon- 
ent, is  not  estopped  from  claiming  the  salary  during  the 
time  of  his  ouster  by  the  fact  that  the  salary  was  paid 
to  the  incumbent  in  accordance  with  a  writ  of  mandamus. 
— People  ex  rel.  Dorsey  v.  Smith,  28  Cal.  21. 

One  claiming  property  may  go  behind  a  decree  fore- 
closing a  mechanic's  lien,  to  which  action  he  was  not  a 
party,  and  show  that  no  lien  in  fact  existed. — Horn  v. 
Jones,  28  Cal.  1!»4. 

Montana.  An  owner  is  not  barred  from  disputing  with 
his  contractor  the  question  whether  certain  painting  was 
done  in  accordance  with  contract,  by  the  fact  that  a  sub- 
contractor recovered  judgment  against  the  principal  con- 
tractor for  the  same  work. — Wagner  v.  St.  Peter's  Hos- 
pital, 32  Mont.  206,  79  P.  1054. 

1  Doe   v.    Brydges,   6   M.   &  G.   282. 

2  Duchess  of  Kington's  Case,  2  S.  L.  C.  760. 

3  Geyer  v.   Aguilar,   7   T.    R.    681. 

4  [Mace  v.  Duffy,  39  Wash.  597,  81  P.   1053.] 


368  JUDGMENTS 

Nebraska.  A  judgment,  as  between  strangers  to  it,  is 
only  proof  of  its  own  existence,  and  does  not  establish  any 
of  the  facts  on  which  it  is  based. — Citizens'  State  Bank  v. 
Porter,  4  Neb.  (Unof.)  73,  93  N.  W.  391. 
North  Dakota.  A  county  obtained  judgment  against  a 
surety  on  its  defaulting  treasurer's  bond.  In  a  suit  by 
the  surety  against  a  bank  to  recover  county  money  de- 
posited in  the  treasurer's  own  name,  the  judgment  as  to 
default  was  not  conclusive  against  the  bank,  but  had  to 
be  proved. — Northern  Trust  Co.  v.  First  Nat.  Bank,  25 
N.  D.  74,  140  N.  W.  705. 

Texas.  A  judgment  in  an  action  against  the  unknown 
heirs  of  one  E.  to  remove  a  cloud  from  title,  cannot  be 
used  evidentially  to  prove  the  death  of  said  E. — McCamant 
v.  Roberts,  66  Tex.  260,  1  S.  W.  260. 

A  judgment  in  an  election  contest,  that  a  county  seat 
was  rightfully  removed,  is  no  bar  to  an  action  to  enjoin 
an  issue  of  bonds  to  effect  such  removal. — Kilgore  v.  Jack- 
son, 55  Tex.  Civ.  App.  99,  118  S.  W.  819. 
Utah.  Where  the  purpose  of  certain  actions  was  to  re- 
cover dower,  and  to  be  awarded  a  widow's  share  in  an 
estate,  and  the  relation  of  plaintiff  as  a  legal  wife,  while 
a  material  issue,  was  only  incidental  to  the  issues,  the 
judgments  therein  are  not  admissible  to  establish  the 
marriage  relation,  in  another  action  to  recover  dower, 
brought  against  different  parties. — Hilton  v.  Snyder,  37 
Utah  384,  108  P.  698. 

Article  43. 
effect  of  judgment  not  pleaded  as  an  estoppel. 

If  a  judgment  is  not  pleaded  by  way  of  estoppel 
it  is  as  between  parties  and  privies  deemed  to  be 
a  relevant  fact,  whenever  any  matter  which  was 
or  might  have  been  decided  in  the  action  in  which 
it  was  given  is  in  issue  or  is  or  is  deemed  to  be 
relevant  to  the  issue  in  any  subsequent  proceed- 
ing. 


JUDGMENTS  369 

Such  a  judgment  is  conclusive  proof  of  the  facts 
which  it  decides,  or  might  have  decided,  if  the 
party  who  gives  evidence  of  it  had  no  opportunity 
of  pleading  it  as  an  estoppel. 

Illustrations. 

(a)  A  sues  B  for  deepening  the  channel  of  a  stream, 
whereby  the  flow  of  water  to  A's  mill  was  diminished. 

A  verdict  recovered  by  B  in  a  previous  action  for  substan- 
tially the  same  cause,  and  which  might  have  been  pleaded 
as  an  estoppel,  is  deemed  to  be  relevant,  but  not  conclusive 
in   B's  favor. — 1 

(b)  A  sues  B  for  breaking  and  entering  A's  land,  and 
building  thereon  a  wall  and  a  cornice.  B  pleads  that  the 
land  was  his,  and  obtains  a  verdict  in  his  favor  on  that  plea. 

Afterwards  B's  devisee  sues  A's  wife  (who  on  the  trial  ad- 
mitted that  she  claimed  through  A)  for  pulling  down  the 
wall  and  cornice.  As  the  first  judgment  could  not  be  pleaded 
as  an  estoppel  (the  wife's  right  not  appearing  on  the  plead- 
ings),  it  is  conclusive  in  B's  favor  that  the  land  was  his. — 2 

NECESSITY  OF  PLEADING  JUDGMENT. 
The  defense  of  former  adjudication,  to  be  available, 
must  be  pleaded. — McNeil's  Estate,  In  re,  155  Cal.  333, 
100  P.  1086;  Schudel  v.  Helbing,  26  Cal.  App.  410,  147  P. 
89;  Brown  v.  Campbell,  110  Cal.  644,  43  P.  12;  McLean  v. 
Baldwin.  136  Cal.  565,  69  P.  259;  Boston  &  Colo.  Smelting 
Co.  v.  Reed,  23  Colo.  523,  48  P.  515;  Josephi  v.  Mady  Cloth- 
ing Co.,  13  Mont.  195,  33  P.  1;  Gregory  v.  Kenyon,  34  Neb. 
640,  52  N.  W.  685;  Kitchin  Bros.  Hotel  Co.  v.  Hammond, 
30  Neb.  618,  46  N.  W.  920;  Davis  v.  Chamberlain,  51  Or. 
304,  98  P.  154;  Murray  v.  Murray,  6  Or.  26;  Bays  v.  Trul- 
son,  25  Or.  109,  35  P.  26;  Interstate  Nat.  Bank  v.  Clax- 
ton,  45  Tex.  Civ.  App.  303,  77  S.  W.  14;  Pye  v.  Wyatt,  (Tex. 
Civ.  App.).  151  S.  W.  1086;  State  v.  St.  Louis,  S.  W.  Ry. 
Co.,  (Tex.  Civ.  App),  165  S.  W.  491;  Mullinax  v.  Barrett, 
(Tex.  Civ.  App.),   173  S.  W.   1181. 


1  Vooght    v.    Winch,    2   B.   &   A.    662;   and  see   Feversham   v. 
Emerson,    11   Ex.   391. 

2  Whitaker  v.  Jackson,  2  H.  &  C.  926.     This  had  previously 
been  doubted.     See   2   Ph.   Ev.    24,  n.   4. 


370  JUDGMENTS 

Arkansas.  The  defense  of  res  judicata  cannot  be  raised 
by  demurrer,  but  only  by  answer. — Adams  v.  Billingsley, 
107  Ark.  38,  153  S.  W.  1105. 

California.  In  an  action  of  ejectment  where  defendant 
simply  denied  the  allegation  of  the  complaint,  he  could 
not  introduce  in  evidence  a  copy  of  the  record  of  a  for- 
mer recovery. — Piercy  v.  Sabin,  10  Cal.  22. 

Former  recovery  may  be  set  up  to  a  defense  of  defend- 
ant, plaintiff  having  no  opportunity  to  plead  it,  a  replica- 
tion not  being  required. — Wixson  v.  Devine,  67  Cal.  341, 
7  P.  776. 

The  rule  that  a  judgment  must  be  pleaded  in  order  to 
render  it  available  as  an  estoppel  does  not  require  its 
setting  out  in  a  complaint. — Ahlers  v.  Smiley,  11  Cal.  App. 
343,  104  P.  997. 

In  a  suit  for  personal  injuries,  a  judgment  for  damages 
to  plaintiff's  automobile  received  in  the  same  accident,  in 
order  to  be  available  as  a  defense,  must  be  pleaded. — 
Schermerhorn  v.  Los  Angeles  Pac.  R.  Co.,  18  Cal.  App. 
454,   123   P.   351. 

Colorado.  Plaintiff,  suing  her  landlord  for  damages  for 
wrongful  attempts  to  evict  her,  may  introduce  the  judg- 
ment in  a  prior  suit  between  her  and  defendant,  wherein 
she  was  adjudged  to  be  entitled  to  the  premises,  although 
the  judgment  was  not  pleaded. — Gray  v.  Linton,  38  Colo. 
175,   88   P.   749. 

Nebraska.  Where  a  former  judgment  is  relied  on  as  an 
estoppel  it  must  be  pleaded. — Gregory  v.  Kenyon,  34  Neb. 
640,   52  N.  W.  685. 

New  Mexico.  In  order  to  avail  himself  of  the  defense 
of  res  judicata  in  a  suit  in  equity,  the  defendant  should 
plead  and  prove  facts  sufficient  to  establish  a  former 
adjudication  of  the  issue  by  judgment  decree,  or  final  order 
of  a.  court  of  competent  jurisdiction. — Ortiz  v.  First  Nat. 
Bank.  12  N.  M.  519,  78  P.  529. 

North  Dakota.  When  there  is  no  request  by  defendant 
for  a  reply,  a  former  judgment  may  be  proved,  though  not 
pleaded.— Kain  v.  Garnaas,  27  N.  D.  292,  145  N.  W.  825. 
Oregon.  An  estoppel  by  record,  to  become  available  as  a 
cause  of  action  or  defense  must  be  pleaded. — Bays  v.  Trul- 
son,  25  Or.  109,  35  P.  26. 


JUDGMENTS  371 

Washington.  A  former  judgment  not  having  been  entered 
when  an  answer  was  filed  In  an  action,  defendants  are 
not  estopped  from  introducing  such  judgment  in  evidence 
by  the  fact  that  they  had  not  pleaded  it,  especially  where 
plaintiffs  pleaded  it  in  a  supplemental  reply. — Collins  v. 
Gleason,  47  Wash.  62,  91  P.   566. 


Article  44. 

judgments  generally  deemed  to  be  irrelevant  as  between 
strangers. 

Judgments  are  not  deemed  to  be  relevant  as 
rendering  probable  facts  which  may  be  inferred 
from  their  existence,  but  which  they  neither  state 
nor  decide — 

as  between  strangers; 

as  between  parties  and  privies  in  suits  where 
the  issue  is  different  even  though  they  relate  to 
the  same  occurrence  or  subject  matter; 

or  in  favor  of  strangers  against  parties  or  priv- 
ies. 

But  a  judgment  is  deemed  to  be  relevant  as  be- 
tween strangers : 

(1)  if  it  is  an  admission,  or 

(2)  if  it  relates  to  a  matter  of  public  or  general 
interest,  so  as  to  be  a  statement  under  Article  30. 

Illustrations. 

(a)  The  quest  ion  is,  whether  A  has  sustained  loss  by  the 
negligence  of  B  his   servant,   who  has   injured  C's  horse. 

A  judgment  recovered  by  C  against  A  for  the  Injury, 
though  conclusive  as  against  B,  as  to  the  fact  that  C  recov- 
ered a  sum  <<f  money  from  A.  is  deemed  to  be  irrelevant  to 
the   question,    whether   this  was   caused   by   B's   negligence. — 1 

1   Green  v.   New  River  Company,   4   T.   R.  589. 


372  JUDGMENTS 

(b)  The  question  whether  a  bill  of  exchange  is  forged 
arises  in  an  action  on  the  bill.  The  fact  that  A  was  con- 
victed of  forging  the  bill  is  deemed  to  be  irrelevant. — 2 

(c)  A  collision  takes  place  between  two  ships  A  and  B, 
each   of  which   is   damaged  by  the  other. 

The  owner  of  A  sues  the  owner  of  B,  and  recovers  damages 
on  the  ground  that  the  collision  was  the  fault  of  B's  cap- 
tain. This  judgment  is  not  conclusive  in  an  action  by  the 
owner  of  B  against  the  owner  of  A,  for  the  damage  done  to 
B. — 3      [Semble,  it   is  deemed  to  be  irrelevant.] — 4 

(d)  A  is  prosecuted  and  convicted  as  a  principal  felon. 

B  is  afterwards  prosecuted  as  an  accessory  to  the  felony 
committed  by  A. 

The  judgment  against  A  is  deemed  to  be  irrelevant  as 
against  B  though  A's  guilt  must  be  proved  as  against  B. — 5 

(e)  A  sues  B,  a  carrier,  for  goods  delivered  by  A  to  B. 

A  judgment  recovered  by  B  against  a  person  to  whom  he 
had  delivered  the  goods,  is  deemed  to  be  relevant  as  an  admis- 
sion by  B  that  he  had  them. — 6 

(f)  A  sues  B  for  trespass  on  land. 

A  judgment,  convicting  A  for  a  nuisance  by  obstructing  a 
highway  on  the  place  said  to  have  been  trespassed  on  is  [at 
least]  deemed  to  be  relevant  to  the  question,  whether  the 
place  was  a  public  highway   [and  is  possibly  conclusive.] — 7 

CONCLUSIVENESS    OF    FACTS    INFERRED     FROM 
JUDGMENT. 

Upon  the  trial  of  an  accessory  before  the  fact,  the  record 
of  the  conviction  of  the  principal  is  prima  facie  proof  of 
that  fact;  but  this  is  not  conclusive,  and  other  evidence 
of  the  commission  of  the  crime  by  the  principal  is  ad- 
missible.—State  v.  Mosley,  31  Kan.  355,  2  P.  782;  State 
'  v.  Gleim,  17  Mont.  17,  41  P.  998. 
California.  Where  a  wife  remaining  in  New  Hampshire 
married  another  without  obtaining  a  divorce  after  her 
husband  had,  without  deserting  her,  gone  to  California,  a 
decree  of  a  New  Hampshire  probate  court  adjudging  that 
she  was  the  widow  of  the  person  she  bigamously  married 

2  Per  Blackburn,  J.,  in  Castrique  v.  Imrie,  L.  R.  4  E.  &  I. 
App.   434. 

3  The  Calypso,    1    Swab.   Ad.    28. 

4  On  the  general  principle  in  Duchess  of  Kingston's  Case, 
2  S.  L.  C.  813. 

5  Semble  from  R.  v.  Turner,  1  Moo.  C.  C.  347. 

6  Buller,  N.  P.  242,  b. 

7  Petrie  v.  Nuttall,  11  Ex.  569. 


JUDGMENTS  373 

is  not  conclusive  and  does  not  bar  her  right  to  administer 
the  estate  of  her  first  husband. — Newman's  Estate,  In  re, 
124  Cal.  688,  57  P.  686. 

Nebraska.  A  judgment  of  conviction  of  a  wife  for  the 
murder  of  her  husband  does  not  bar  a  recovery  by  her  of 
an  insurance  benefit  void  if  the  beneficiary  should  kill 
the  insured  except  by  accident. — Lillie  v.  Modern  Wood- 
men of  America,  89  Neb.  1,  130  N.  W.  1004. 

Matters    Incidentally    Involved. 

Estoppel  of  a  judgment  extends  only  to  matters  directly 
involved,  and  not  to  any  matter  which  was  only  incident- 
ally cognizable  or  which  came  incidentally  in  question: 
California:  Lillis  v.  Emigrant  Ditch  Co.,  95  Cal.  553,  30 
P.  1108  (judgment  giving  defendant  right  to  divert  suf- 
ficient water  to  fill  a  ditch  not  an  estoppel  of  plaintiff  In 
a  subsequent  action  to  deny  defendant's  right  to  more 
than  forty  cubic  feet  per  second,  though  defendant  had 
alleged  that  he  was  entitled  to  one  hundred  feet) ;  Ahlers 
v.  Smiley,  11  Cal.  App.  343,  104  P.  997. 
Nebraska:  Kazebeer  v.  Nunemaker,  82  Neb.  732,  118  N. 
W.  646  (matters  only  collaterally  introduced  in  a  guar- 
dian's account  not  adjudicated  by  final  settlement). 
Texas:  Berger  v.  Kirby,  (Tex.  Civ.  App.),  135  S.  W.  1122 
(status  of  plaintiff  as  wife  of  deceased  not  concluded  by 
anything  in  administration  proceedings). 

Even  though  the  matter  coming  collaterally  in  question 
may  have  been  judicially  passed  on. — Berger  v.  Kirby, 
(Tex.  Civ.  App.),  135  S.  W.  1122;  Ellerd  v.  Ellison,  (Tex. 
Civ.  App),   165  S.  W.   876. 

Different  Parties  or  Causes  of  Action. 
California.  If  a  judgment  in  ejectment  Is  rendered  against 
one  who  holds  as  tenant  of  another,  a  third  person,  who 
afterwards  takes  possession  without  any  privity  with  the 
tenant  or  his  landlord,  is  not  estopped  by  the  judgment. — 
Mayo  v.  Wood,   50  Cal.   171. 

Conviction  of  a  person  for  killing  insured  is  not  a  bar 
to  claim  of  accused's  insanity,  though  his  sanity  was  not 
questioned  during  the  criminal  trial. — Marceau  v.  Trav- 
elers' Ins.  Co.,  101  Cal.  338.  35  P.  856. 

Colorado.  In  a  proceeding  to  condemn  a  right  of  way 
for  an  irrigation  ditch,  a  judgment  in  a  prior  suit  that 


374  JUDGMENTS 

plaintiff  had  no  right  to  construct  the  ditch  without  having 
secured  a  right  of  way  therefor  cannot  be  set  up  as  res 
judicata.— Schneider  v.  Schneider,  36  Colo.  518,  86  P.  347. 
Kansas.  A  judgment  against  a  city  in  quo  warranto,  oust- 
ing it  from  the  usurpation  of  unwarranted  powers  by  im- 
posing license  taxes  for  the  sale  of  intoxicating  liquors 
in  the  form  of  simulated  fines,  is  no  bar  to  a  similar  pro- 
ceeding brought  many  years  after. — State  v.  City  of 
Leavenworth,  75  Kan.  787,  90  P.  237. 

A  judgment  that  money  given  to  defendant  was  given 
under  an  express  contract  to  nurse  plaintiff  does  not  bar 
a  claim  against  the  estate  of  said  plaintiff  for  the  value 
of  such  services.— Clifton  v.  Meuser,  88  Kan.  408,  129  P. 
159. 

Nebraska.  A  judgment  in  ejectment  for  defendant,  be- 
cause plaintiff's  claim  was  proved  to  be  only  an  equitable 
one,  does  not  bar  an  equitable  action  to  quiet  title  based 
on  the  same  instrument  set  up  by  plaintiff  in  the  former 
suit.— Reams  v.  Sinclair,  97  Neb.  542,  150  N.  W.  826. 
South  Dakota.  In  a  suit  on  a  note  by  a  bona  fide  holder, 
a  breach  of  warranty  on  the  sale  of  a  horse,  for  part  of 
the  purchase  price  of  which  the  note  was  given,  was  held 
no  defense.  The  judgment  did  not  bar  an  action  by  the 
purchaser  against  the  seller  for  breach  of  warranty. — 
Henton  v.  Spencer,  29  S.  D.  190,  136  N.  W.  112. 
Texas.  Recovery  by  plaintiff  of  actual  and  exemplary 
damages  for  malicious  prosecution  on  a  charge  of  steal- 
ing a  bale  of  cotton  and  for  forcibly  taking  away  the 
cotton  will  not  bar  a  pending  suit  by  her  for  the  recovery 
of  the  cotton,  where  the  decree  shows  that  no  part  of  the 
recovery  was  based  upon  the  value  of  the  cotton. — Pish- 
away  v.  Runnells,  71  Tex.  352,  9  S.  W.  260. 

A  recovery  by  a  beneficiary  on  an  inusrance  policy  does 
not  cut  off  an  inquiry  between  him  and  the  legal  repre- 
sentatives and  heirs  of  the  deceased  as  to  whether  he 
had  an  insurable  interest. — Pacific  Mut.  Life  Ins.  Co.  v. 
Williams,  79  Tex.  633,  15  S.  W.  478. 

A  judgment  in  a  divorce  action  in  favor  of  the  wife  on 
the  ground  of  assault  cannot  be  introduced  to  prove  the 
assault  in  a  criminal  action  against  the  husband  for  the 


JUDGMENTS  375 

same  offense.— Dunagain  v.  State,  38  Tex.  Cr.  R.  614,  44 
S.  W.   148. 

PERSONS    CONCLUDED. 
In  General. 

Creditors  of  decedent  are  bound  by  the  judgment  in  a 
suit  concerning  the  assets  of  the  estate,  to  which  the 
administrator  was  a  party. — W.  R.  Moore  &  Co.  v.  Sloan, 
71  Ark.  599,  76  S.  W.  1058. 

California.  A  judgment  in  an  action  by  a  city  for  land 
claimed  as  a  public  park  is  a  bar  to  an  action  by  the 
state  for  the  same  land. — People  v.  Holladay,  102  Cal. 
661,    36    P.    927. 

Colorado.  A  decree  adjudicating  priority  of  rights  to 
water  of  different  ditches  establishes  the  rank  of  the 
ditches  with  relation  to  each  other,  and  cannot  determine 
the  rights  as  between  the  owners  of  the  same  ditch,  and 
is  not  conclusive  as  to  such  ownership,  although  it  men- 
tions certain  parties  as  owners  thereof. — Rollins  v.  Fearn- 
ley,  45  Colo.  319,  101  P.  345. 

Kansas.  Goods  shipped  by  a  wife  were  replevied  from 
the  railroad  company  by  one  asserting  title  under  a  chat- 
tel mortgage  executed  by  the  husband.  The  judgment 
did  not  estop  the  wife  who  was  not  a  party. — Peck  v. 
Merchants*  Transfer  &  Storage  Co.,  85  Kan.  126,  116 
P.  365. 

Nebraska.  A  judgment  does  not  establish  any  of  the 
facts  on  which  it  must  have  been  based  except  between 
the  parties  and  their  privies.  (In  action  to  set  aside 
conveyance  as  fraudulent,  the  judgment  in  plaintiff's 
attachment  suit  inadmissible  against  the  grantee  to  prove 
the  debt  on  which  the  judgment  was  founded  antedated 
the  conveyance.) — Citizens'  State  Bank  v.  Porter,  4  Neb. 
(Unof.)   73,  93  N.  W.  391. 

Parties  to  a  judgment  are  not  bound  by  it  in  a  subse- 
quent action  unless  they  were  adverse  parties  in  the 
original  action.  (In  an  action  on  a  note  and  mortgage 
against  a  vendor  and  a  vendee  who  had  orally  agreed 
to  assume  the  indebtedness,  the  vendor  defaulting  is  not 
estopped  by  a  judgment  against  him  for  the  unpaid  bal- 
ance  from    maintaining   a   suit   for   damages   against   his 


376  JUDGMENTS 

co-defendant.)—  Wiltrout  v.   Showers,  82  Neb.  777,  118  N. 
W.  1080. 

North  Dakota.  One  who  is  not  a  party  defendant  on  the 
record  in  an  action,  but  who  participates  in  the  defense 
and  has  an  interest  in  the  matter  in  controversy  in  the 
action,  and  participates  in  the  defense  for  the  protection 
of  such  interest  and  not  as  representing  the  interest  of  the 
defendant  of  record,  and  where  it  is  known  to  the  plaintiff 
that  such  party  so  participates  for  the  protection  of  his 
own  interest,  is  bound  by  the  decree  rendered  in  the 
action.— Boyd  v.  Wallace,  10  N.  D.  78,  84  N.  W.  760. 
Texas.  Defendant,  on  a  question  of  heirship  in  plain- 
tiff's chain  of  title,  is  not  concluded  by  a  decree  in  a  cause 
to  which  neither  defendant  nor  his  privies  were  parties. — 
Pratt  v.  Jones,  64  Tex.  694. 

It  is  not  always  necessary  that  the  parties  to  the  two 
suits  should  be  nominally  the  same,  in  order  that  one  re- 
covery may  bar  another,  but  it  is  generally  sufficient  if 
they  are  really  and  substantially  the  same  in  interest. 
(Sellers  of  a  bank,  guaranteeing  collection  of  note  when 
reduced  to  judgment  in  a  suit  by  their  attorney.) — Young 
v.  Bank  of  Miami,   (Tex.  Civ.  App.),  150  S.  W.  1102. 

Parties  and  Privies. 

A  judgment  is  conclusive  not  only  upon  those  who  were 
parties  to  the  action,  but  also  upon  all  persons  who  are 
in  privity  with  them.— Schuler  v.  Ford,  10  Ida.  739,  80 
P.  219;  Bishop  v.  Smith,  9  Kan.  App.  602,  58  P.  493. 
Nebraska.  The  mere  fact  that  a  person  not  a  party  to 
a  pending  suit  employs  counsel  to  assist  in  the  defense 
thereof,  will  not  make  him  a  party  or  a  privy  to  such 
proceedings  nor  estop  him  from  questioning  the  issues 
determined  thereunder. — Cockins  v.  Bank  of  Alma,  84 
Neb.  624,  122  N.  W.  16. 

Rights  to  mining  property  subordinate  to  those  cut  off 
by  a  judgment  are  also  determined  thereby. — Gamble  v. 
Hanchett,  34  Neb.  351,  126  N.  W.  111. 
Texas.  Plaintiff  cannot  fill  a  break  in  his  chain  of  title 
by  a  judgment  to  which  neither  defendants  nor  their 
predecessors  were  parties. — Colman  v.  Reavis,  (Tex.  Civ. 
App.),  34  S.  W.   645. 


JUDGMENTS  377 

None  are  to  be  considered  as  parties  to  a  suit  and 
bound  in  that  character  by  a  judgment  against  them,  but 
those  who  are  named  as  such  in  the  record. — Campbell 
v.  Upson,  98  Tex.  442,  84  S.  W.  817. 

A  judgment  can  only  operate  in  favor  of  or  against  the 
parties  thereto  or  their  privies  in  blood  or  estate. — Con- 
nor v.  Weik,   (Tex.  Civ.  App.),  116  S.  W.  650. 

Utah.  A  decree  distributing  to  a  creditor  the  interest  of 
some  of  the  heirs  of  an  estate  is  conclusive  as  against  their 
assignee  for  the  benefit  of  creditors. — Snyder  v.  Murdock, 
26  Utah  233,  73  P.  22. 

Wyoming.  If  a  decree  adjudicating  water  rights  is  valid, 
both  parties  and  privies  are  bound  thereby. — Holt  v.  City 
of  Cheyenne,  22  Wyo.  212,  137  P.  876. 

Co-Plaintiffs  or  Co-Defendants. 
Colorado.  Directors  brought  suit  against  the  corporation 
and  a  director  for  fraud  in  negotiating  a  loan,  the  corpo- 
ration answering  and  adopting  the  complaint.  A  judg- 
ment for  defendant  precluded  the  corporation  from  after- 
wards proceeding  against  defendant  upon  the  same  cause 
of  action. — Montezuma  Cattle  Co.  v.  Dake,  16  Colo.  139, 
63  P.  1058. 

Oklahoma.  Where  one  is  made  a  defendant  in  a  suit  on 
the  ground  of  claiming  a  lien  in  the  property  in  contro- 
versy, and  makes  default,  he  is  not  barred  from  bringing 
suit  upon  his  claim  against  his  co-defendant. — Keagy  v. 
Wellington  Nat.  Bank,  12  Okl.  33,  69  P.  811. 

Ordinarily  a  judgment  settles  nothing  between  co-plain- 
tiffs or  co-defendants,  unless  their  conflicting  claims  were 
brought  into  issue  and  actually  litigated  and  determined. 
-De  Watteville  v.  Sims,  44  Okl.  708,  146  P.  224. 

Washington.  A  judgment  in  a  suit  brought  by  a  taxpayer 
to  enjoin  a  city  from  going  on  with  a  contract  with  plain- 
tiff, on  account  of  the  illegality  of  the  ordinance  authoriz- 
ing it,  which  the  city  and  plaintiff  joined  in  defending  its 
legality,  doos  not  estop  the  city  from  setting  up  the  ille- 
gality of  the  ordinance  when  sued  by  plaintiff  on  the  con- 
tract.—Savage  v.  City  of  Taconia,  61  Wash.   1,   112  P.  78. 


378  JUDGMENTS 

Co-Plaintiff  Withdrawing. 
Nebraska.  Where  plaintiff  was  a  party,  with  his  wife  and 
children,  to  an  action  to  recover  damages  for  injuries  re- 
ceived while  he  was  intoxicated  by  liquor  sold  by  defend- 
ant, and  withdrew  his  name  and  the  items  of  his  special 
damage,  by  omitting  them  from  an  amended  complaint, 
though  without  leave  of  court,  the  judgment  in  the  case 
did  not  estop  him  from  a  subsequent  suit  therefor. — Henkel 
v.  Boudreau,  94  Neb.  338,  143  N.  W.  236. 

Representative  and  Individual  Capacity. 
Colorado.  One  holding  title  to  land  as  trust  deed  is  made 
a  defendant  in  an  action  to  quiet  title  in  his  individual 
capacity.  The  decree  does  not  bind  him  as  trustee. — 
Webster  v.  Kautz,  22  Colo.  App.  Ill,  123  P.  139;  Held  v. 
Houser,  53  Colo.  363,  127  P.  139. 

South  Dakota.  Where  a  person  is  sued  in  his  individual 
capacity  and  by  the  adjudication  is  precluded  from  claim- 
ing property  as  an  individual,  he  is  not  estopped  from 
claiming  in  the  capacity  of  trustee  for  others  for  whom 
he  held  the  same  when  the  suit  against  him  was  com- 
menced.— Sonnenberg  v.  Steinbach,  9  S.  D.  518,  70  N.  W. 
655. 

Texas.  Where  a  defendant  is  complained  of  in  an  individ- 
ual capacity  only,  no  judgment  can  be  rendered  which 
will  bind  him  in  a  representative  capacity. — Pryor  v. 
Krause,  (Tex.  Civ.  App.),  168  S.  W.  498. 
State  or  Municipality  and  Officers,  Citizens  or  Taypayers. 
A  judgment  duly  entered  in  an  action  of  which  the  court 
has  jurisdiction  against  a  county  or  municipality  or  its 
legal  representatives,  in  a  matter  of  general  interest  to 
all  its  citizens,  is  binding  upon  the  latter,  though  they 
are  not  nominally  parties. — State  v.  Willis,  19  N.  D.  209, 
124  N.  W.  706;  Williams  v.  Cole,  54  Wash.  110,  102  P.  870. 
Colorado.  A  judgment  against  a  public  officer  as  such, 
relating  to  a  public  right,  duty,  power,  liability,  or  obliga- 
tion attaching  to  the  office,  binds  his  successor. — People 
ex  rel.  v.  Cassiday,  50  Colo.  503,  117  P.  357. 
Nebraska.  A  judgment  against  a  municipal  corporation 
is  conclusive  both  upon  the  corporation  and  its  taxpayers. 
— Orcutt  v.  McGinley,  96  Neb.  619,  148  N.  W.  586. 


JUDGMENTS  379 

Oklahoma.  Judgment  in  a  suit  by  a  taxpayer  of  a  con- 
solidated school  district  to  enjoin  its  officers  from  chang- 
ing schools  from  the  separate  districts  is  a  bar  to  an 
action  by  another  taxpayer  to  require  them  to  make  such 
change.— Worrell  v.  Landis.  42  Okl.  464,  141  P.  962. 

Persons  Not  Made  Parties. 

A  person's  right  to  property  cannot  be  adjudicated  in  a 
suit  to  which  he  is  not  a  party. — Reagan  v.  Bahrs,  11  Cal. 
App.  234,  104  P.  589;  Ruhnke  v.  Aubert,  58  Or.  6,  113  P.  38; 
Lightfoot  v.  Horst,  (Tex.  Civ.  App.),  122  S.  W.  606;  Bou- 
cofski  v.  Jacobsen,  36  Utah  165,  104  P.  117. 
Arkansas.  Judgment  in  an  attachment  suit  that  an  assign- 
ment of  certain  property  by  the  debtor  to  another  creditor 
was  void  does  not  bind  the  latter  where  he  was  not  a 
party.— Avera  v.  Rice,  64  Ark.  330.  42  S.  W.  409. 
Colorado.  A  wife  by  supplemental  petition  obtained  judg- 
ment declaring  record  holders  of  stock,  not  parties  to  the 
suit,  to  have  no  title,  and  subjecting  the  stock  to  the  pay- 
ment of  alimony.  The  judgment  was  void  as  to  such 
parties.— Archuleta  v.  Archuleta.  52  Colo.  601,  123  P.  821. 
Kansas.  One  not  made  a  party  to  an  action  is  neither 
bound  by  the  judgment  nor  can  he  claim  advantages  grow- 
ing out  thereof. — Manley  v.  Debentures  "B"  Liquidation 
Co.,    64    Kan.    573,    68    P.    31. 

Oregon.  An  owner  of  record  not  made  a  party  to  a  suit 
to  foreclose  a  mechanic's  lien  is  not  bound  by  the  judg- 
ment.—Byrd  v.  Cooper,  69  Or.  406,  139  P.  104. 
South  Dakota.  A  party  is  not  bound  by  a  judgment  to 
which  he  is  not  a  party,  unless  in  a  few  exceptional  cases. 
— McPherson  v.  Julius.  17  S.  D.  98,  95  N.  W.  428;  Chap- 
man v.  Greene,  18  S.  D.  505,  101  N.  W.  351. 
Texas.  A  warrantor  of  title  must  have  been  required  to 
defend,  in  order  that  he  may  be  concluded  by  the  judg- 
ment rendered  against  his  vendee  in  a  suit  by  the  vendee 
of  the  latter. — Buchanan  v.    K uuffman,  65  Tex.   235. 

The  determination  that  certain  land  was  within  the 
boundaries  of  a  certain  survey  owned  by  defendants  is  not 
conclusive  against  plaintiff  where  he  was  not  a  party. — 
Yochum  v.  McCurdy,  (Tex.  Civ.  App.),  39  S.  W.  210. 


380  JUDGMENTS 

Washington.  A  prior  assignee  of  a  mortgage,  not  made  a 
party  is  not  bound  by  a  judgment  against  the  mortgagor 
declaring  the  mortgage  a  subsequent  lien. — Keene  Guar- 
anty Sav.  Bank  v.  Lawrence,  32  Wash.  572,  73  P.  680. 

Citizens  Successively  Suing. 
Texas.  In  an  action  at  the  suit  of  certain  citizens  of  a  city 
to  prevent  a  railroad  from  moving  its  offices  and  shops 
located  there  in  purusance  of  contract,  the  judgment  is  a 
bar  to  a  suit  by  other  citizens  for  the  same  end. — Hovey 
v.  Shepherd,  (Tex.  Civ.  App.),  147  S.  W.  224. 
Washington.  A  judgment  in  an  action  by  a  citizen  and 
taxpayer  to  enjoin  officers  of  a  city  from  calling  an  elec- 
tion to  vote  bonds,  on  the  ground  of  the  invalidity  of  the 
authorizing  ordinance  is  res  judicata  as  against  another 
citizen  and  taxpayer  bringing  suit  after  the  election  to 
enjoin  the  officers  from  paying  interest  on  the  bonds  on 
the  ground  of  the  invalidity  of  the  ordinance. — Stallcup  v. 
City  of  Tacoma,  13  Wash.  141,  42  P.  541. 

A  judgment  upholding  the  sufficiency  of  a  petition  for 
the  submission  of  the  question  of  the  licensing  of  intoxi- 
cating liquors,  in  a  suit  by  a  taxpayer  of  a  city,  is  a  bar 
to  a  subsequent  suit  as  to  the  same  matter  by  the  holder 
of  a  retail  liquor  license,  who  alleges  himself  to  be  a  tax- 
payer of  said  city. — State  v.  Superior  Court  of  Lewis 
County,   70  Wash.   670,   127   P.   313. 

Assignee. 
Texas.     The  assignee  of  a  claim,  employing  an  attorney  to 
bring  suit  in  the  name  of  the  assignor,  is  bound  by  the 
judgment.— Cleveland   v.   Heidenheimer,    (Tex.    Civ.   App.), 
44  S.  W.  551. 

Principal  ?.    :'.  Surc'y. 
Arizona.     A  judgment  against  a  sheri"?  cannot  be  offered 
in  evidence  in  a  suit  against  the  sur3lies  on  his  bond. — 
Gray  v.  Noonan,  5  Ariz.  167,  50  ?.  11  ?>. 

Prior  Mortgagee. 
Washington.     A   prior  mortgage   filed   and  indexed  before 
the   creation   of  a  right  to  mechanics'  lien  is   not   bound 
thereby  or  by  the  sale   made   thereunder.— A.    H.   Averil! 
Machinery  Co.  v.  Allbritton,  51  Wash.  30,  97  P.  1082. 


JUDGMENTS  381 

Prior  Grantee  or  Contractor. 

A  judgment  against  a  grantor  of  land  rendered  subse- 
quent to  a  conveyance  of  his  interest  does  not  bind  the 
grantee. — Roulston  v.  Hall,  66  Ark.  305,  50  S.  W.  690; 
Adams  v.  Hopkins,  144  Cal.  19,  77  P.  712;  State  v.  Cough- 
ran,  19  S.  D.  71,  103  N.  W.  31;  Ellis  v.  LeBow,  96  Tex.  532, 
74  S.  W.  528. 

Ordinarily  a  judgment  in  an  action  commenced  subse- 
quently to  a  purchase  of  real  estate  is  not  binding  upon 
the  purchasers  not  parties  thereto. — De  Watteville  v.  Sims, 
44  Okl.  708,  144  P.  224;  Wilson  v.  Clemens,  (Tex.  Civ. 
App.),  170  S.  W.  855. 

Arkansas.  Where  defendant  in  attachment  had  already 
sold  to  another  the  lumber  attached,  the  latter  is  not 
bound  by  the  judgment,  not  being  a  party. — Biederman 
v.  Parker,  105  Ark.  86,  150  S.  W.  397. 

Idaho.  A  party  in  possession  of  land  under  contract  to 
purchase  is  not  in  privity  with  the  party  who  contracted 
to  sell,  in  the  sense  that  he  will  be  bound  by  the  judgment 
affecting  such  property,  where  the  action  was  commenced 
subsequent  to  entering  into  such  contract.— Schuler  v. 
Ford,  10  Ida.  739,  80  P.  219. 

Subsequent  Grantee. 

Grantees  taking  land  after  the  institution  of  a  suit  re- 
garding the  same  brought  against  their  grantor  are  bound 
by  the  judgment. — Provident  Loan  Trust  Co.  v.  Marks,  6 
Kan.  App.  34.  49  P.  625;  Henry  v.  Thomas,  (Tex.  Civ.  App.). 
74  S.  W.  599. 

A  decree  quieting  title  against  a  person  binds  his  sub- 
sequent grantee. — Shepperd  v.  Coeur  d'Alene  Lumber  Co., 
16  Ida.  293,  101  P.  591;  Hungate  v.  Hetzer,  83  Kan.  265,  111 
P.  283. 

Idaho.  One  holding  a  tax  certificate  is  made  defendant  in 
a  suit  to  quiet  title.  The  judgment  binds  one  to  whom  he 
afterwards  transfers  his  certificate. — Smith  v.  Kessler,  22 
Ida.  589,  127  P.  172. 

Trustee   and    Beneficiary. 
A  judgment  against  the  trustee  in  a  trust  deed  in  a  suit 
to  quiet  title,  binds  the  beneficiaries. — Sherman  v.  Good- 


382  JUDGMENTS 

win,  15  Ariz.  47,  185  P.  710;  WatMffS  v.  Bryant,  91  Cal.  492, 

27  P.  775. 

Contra:     Webster  v.  Kautz,  22  Colo.  App.  Ill,  123  P.  139. 

A  mortgagee  or  beneficiary  under  a  trust  deed,  who  has 
not  been  made  a  party  to  a  suit  involving  the  property  is 
not  bound  by  the  judgment. — Williams  v.  Cooper,  124  Cal. 
666,  57  P.  577;  Fleming  v.  Prudential  Ins.  Co.,  19  Colo. 
App.  126,  73  P.  752;  Goff  v.  Byers'  Bros.  &  Co.,  70  Neb.  1, 
96  N.  W.  1037. 

Landlord  and  Tenant. 

A  landowner  who  is  not  a  party  to,  has  no  notice  of  and 
does  not  defend  an  action  of  ejectment  against  his  tenant, 
is  not  bound  by  a  judgment  in  the  action  adverse  to  the 
tenant.— Eldred  v.  Johnson,  75  Ark.  1,  86  S.  W.  670;  Dit- 
linger  v.  Miller,  81  Kan.  9,  105  P.  20;  Hart  v.  Meredith,  27 
Tex.  Civ.  App.  271,  65  S.  W.  507. 

California.  But  if  the  landlord  assumes  his  defense  and 
puts  his  title  in  issue,  the  judgment  binds  him  the  same 
as  though  he  was  made  a  party  on  the  record. — Russell  v. 
Mallon,  38  Cal.  259. 

Holder  of   Note  Secured  by  Trust  Deed. 

A  judgment  in  a  suit  to  quiet  title  against  an  original 
holder  of  a  note  secured  by  trust  deed  does  not  bind  one 
to  whom  the  note  had  been  previously  transferred. — Web- 
ster v.  Kautz,  22  Colo.  App.  Ill,  123  P.  139. 

Nor  is  the  assignee  of  a  note  secured  by  mortgage  not 
made  a  party,  bound  by  the  judgment  in  an  action  to  can- 
cel the  mortgage. — Aetna  Indemnity  Co.  v.  Altadena  Min.  & 
Inv.  Co.,  11  Cal.  App.  26,  104  P.  470. 

Colorado.  A  judgment  in  a  suit  to  quiet  title  against  an 
original  holder  of  a  note  secured  by  trust  deed  does  not 
bind  one  to  whom  the  note  had  previously  been  transferred. 
—Webster  v.  Kautz,  22  Colo.  App.  Ill,  123  P.  139. 

Administrator  and  Heir. 
Nebraska.  A  judgment  dismissing  an  administrator's 
action  to  quiet  title  is  not  a  bar  to  a  subsequent  action  by 
the  heir  against  the  defendant  in  the  administration  suit 
to  quiet  title  to  the  same  property. — Eayrs  v.  Nason,  54 
Neb.  143,  74  N.  W.  408. 


383  JUDGMENTS 

Corporation  and  Stockholders. 

A  corporation  brought  suit  on  behalf  of  the  corporation 
to  annul  a  sale  of  corporate  property  to  one  of  its  directors, 
the  corporation  being  made  a  defendant.  Judgment  for 
defendants  was  a  bar  to  a  subsequent  suit  by  another 
stockholder  to  effect  the  same  end.— Hearst  v.  Putnam 
Min.  Co.,  28  Utah  184,  77  P.  753. 


Article  45. 
judgments  con<  i.isivk  i.\  favor  of  judge. 

When  any  action  is  brought  against  any  person 
for  anything  done  by  him  in  a  judicial  capacity, 
the  judgment  delivered,  and  the  proceedings  an- 
tecedent thereto,  are  conclusive  proof  of  the  facts 
therein  stated,  whether  they  are  or  are  not  neces- 
sary to  give  the  defendant  jurisdiction,  if,  assum- 
ing them  to  be  true,  they  show  that  he  had  juris- 
diction. 

Illustration. 

A  sues  B  (a  justice  of  the  peace)  for  taking  from  him  a 
vessel  and  500  lbs.  of  gunpowder  thereon.  B  produces  a  con- 
viction before  himself  of  A  for  having  gunpowder  in  a  boat 
on  the  Thames   (against  2  Geo.  Ill,  c.   28). 

The  conviction  is  conclusive  proof  for  B  that  the  thing 
called  a  boat  was  a  boat. — 1 

A  recital  in  a  judgment  for  contempt  that  at  the  time 
of  the  issuance  and  service  of  a  writ  of  habeas  corpus 
the  person  named  in  the  writ  was  in  custody  and  control 
of  the  petitioner  is  conclusive  in  a  habeas  corpus  proceed- 
ing brought  by  petition  ir  Sternes,  ex  parte,  77  Cal.  156, 
19  P.  275. 


1   Brittain   v.  Kinnaird,    1    K.   A  R    183 


384  JUDGMENTS 

Article  46. 
fraud,  collusion,  or  want  of  jurisdiction  may  be  proved. 

Whenever  any  judgment  is  offered  as  evidence 
under  any  of  the  articles  hereinbefore  contained, 
the  party  against  whom  it  is  so  offered  may  prove 
that  the  Court  which  gave  it  had  no  jurisdiction, 
or  that  it  has  been  reversed,  or,  if  he  is  a  stran- 
ger (a)  to  it,  that  it  was  obtained  by  any  fraud  or 
collusion,  to  which  neither  he  nor  any  person  to 
whom  he  is  privy  was  a  party,  (b) 

JURISDICTION    OF  COURT. 

A  decree  of  a  court  of  general  jurisdiction  is  unimpeach- 
able in  a  collateral  proceeding,  where  the  court  has  juris- 
diction of  the  parties  and  subject-matter. — Clarke  v.  Asher, 
53  Colo.  313,  125  P.  538;  Claypool  v.  O'Neill,  65  Or.  511,  133 
P.  349. 

A  judgment  rendered  without  jurisdiction  is  void  and 
may  be  impeached  in  a  collateral  as  well  as  in  a  direct  pro- 
ceeding.— Grimmet  v.  Askew,  48  Ark.  151,  2  S.  W.  707; 
McDonald  v.  Ft.  Smith  &  W.  R.  Co.,  105  Ark.  5,  150  S.  W. 
135;  Klumpke  v.  Henley,  24  Cal.  App.  35,  140  P.  313;  Em- 
pire Ranch  &  Cattle  Co.  v.  Farmer,  24  Colo.  App.  45,  131 
P.  799;  Gibson  v.  Austin,  23  Colo.  App.  220,  128  P.  859; 
Larimer  v.  Knoyle,  43  Kan.  344,  23  P.  489;  Johnson  v.  Par- 
rotte,  46  Neb.  51,  64  N.  W.  363;  First  State  Bank  of  Add- 
ington  v.  Latimer,  (Okl.),  149  P.  1099;  Jefferson  v.  Galla- 
gher, (Okl.),  150  P.  1071;  Furgeson  v.  Jones,  17  Or.  204, 
20  P.  842;  Withers  v.  Patterson,  27  Tex.  491,  86  Am.  Dec. 
643;  Hall  v.  Jahns  &  Lofton,  (Tex.  Civ.  App.),  165  S.  W.  67. 

The  presumption  is  that  a  court  of  general  jurisdiction 
is  regular  and  the  burden  of  proving  the  contrary  is  upon 
the  one  attacking  it. — Bagley  v.  City  and  County  of  San 
Francisco,  19  Cal.  App.  255,  125  P.  931;    Empire  Ranch  & 


a   [Vose   v.   Morton,    4   Cush.    (Mass.)    27.] 

b  Cases   collected  in  T.   E.   ss.   1524-1525,   s.   1530.     See,   too, 
2  Ph.  Ev.  35,  and  Ochsenbein  v.  Papelier,  L.  R.  8  Ch.  695. 


JUDGMENTS  385 

Cattle  Co.  v.  Coleman,  23  Colo.  App.  351,  129  P.  533;  Ross 
v.  Newsom,  25  Colo.  App.  393,  138  P.  1015;  Kavanah  v. 
Hamilton,  53  Colo.  157,  125  P.  512;  Hughes  v.  Webster,  52 
Colo.  475,  122  P.  789;  Shane  v.  Peoples,  25  N.  D.  188,  141 
N.  W.  737;  Hocker  v.  Johnson,  38  Okl.  60,  131  P.  1094; 
Carter  v.  Frahm,  31  S.  D.  379.  141  N.  W.  370;  Wilkins  v. 
Simmons,  (Tex.  Civ.  App.),  151  S.  W.  1145;  Gibson  v. 
Oppenheimer,  (Tex.  Civ.  App.),  154  S.  W.  694;  Lester  v. 
Gatewood,  (Tex.  Civ.  App.),  166  S.  W.  389;  McHugh  v. 
Conner,  68  Wash.  229,  122  P.  1018;  Kline  Bros.  &  Co.  v. 
North  Coast  Fire  Ins.  Co.,  80  Wash.  609,  142  P.  7. 

A  judgment  may  be  attacked,  even  in  a  collateral  pro- 
ceeding, if  the  court  rendering  it  had  no  jurisdiction  either 
of  the  person  or  subject-matter. — Grimmett  v.  Askew,  48 
Ark.  151,  2  S.  W.  707;  Hahn  v.  Kelly,  34  Cal.  391;  Clayton 
v.  Clayton,  4  Colo.  410;  Johnson  v.  Parrotte,  46  Neb.  51, 
64  N.  W.  363;  Furgeson  v.  Jones,  17  Or.  204,  20  P.  842; 
Fitzhugh  v.  Custer,  4  Tex.  391,  51  Am.  Dec.  728. 

Where  no  jurisdiction  is  acquired  over  the  person,  the 
judgment  is  void,  even  on  collateral  attack. — Pray  v. 
Jenkins,  47  Kan.  599,  28  P.  716;  Enerwold  v.  Olsen,  39 
Neb.  59,  57  N.  W.  765;  Parker  v.  Spencer,  61  Tex.  155. 
Contra:  Borden  v.  State,  11  Ark.  519;  Brown  v.  Tucker, 
7  Colo.  30,  1  P.  221. 

A  judgment  may  be  shown  to  be  void  for  want  of  juris- 
diction, not  only  by  the  record  but  by  extrinsic  evidence. 
— Larimer  v.  Knoyle,  43  Kan.  344,  23  P.  489;  Jefferson  v. 
Gallagher,   (Okl.),  150  P.  1071. 

A  void  judgment  may  be  attacked  collaterally. — Riley 
v.  Lemieux,  24  Colo.  App.  184,  132  P.  699;  Long  v.  Tighe, 
36  Nev.  129,  133  P.  60;  Waterman  Lumber  Supply  Co.  v. 
Robins,  (Tex.  Civ.  App.),  159  S.  W.  360;  Evans,  In  re,  42 
Utah  282.  130  P.  217. 

A  recital  in  a  judgment  that  a  defendant  was  duly  served 
is  conclusive  on  collateral  attack. — McDonald  v.  Ft.  Smith 
&  W.  R.  Co.,  105  Ark.  5,  150  S.  W.  135;  Continental  Gin 
Co.  v.  De  Bord,  34  Okl.  66,  123  P.  159;  Rice  v.  Woolery,  38 
Okl.  199,  132  P.  817;  Hopkins  v.  Cain,  105  Tex.  591,  143  S. 
W.  1145;  Hollingsworth  v.  Wm.  Cameron  &  Co.,  (Tex.  Civ. 
App.),  160  S.  W.  644. 


386  JUDGMENTS 

Mere  irregularities  in  the  proceedings  do  not  vitiate  a 
judgment.— Shirran  v.  Dallas,  21  Cal.  App.  405,  132  P.  454; 
Frey  v.  Superior  Court,  22  Cal.  App.  421,  134  P.  733;  Cellu- 
lose Package  Mfg.  Co.  v.  Calhoun,  166  Cal.  513,  137  P.  238; 
Brown  v.  Whetstone,  25  Colo.  App.  371,  138  P.  61;  Pin- 
nacle Gold  Min.  Co.  v.  Popst,  54  Colo.  451,  131  P.  413; 
Daly  v.  Lahontan  Mines  Co.,  (Nev.),  151  P.  514;  St. 
Anthony  &  Dakota  Elev.  Co.  v.  Martineau,  30  N.  D.  425, 
153  N.  W.  416;  Coblentz  v.  Cochran,  44  Okl.  158,  143  PJ 
658;  Lester  v.  Gatewood,  (Tex.  Civ.  App.),  166  S.  W.  389; 
Holt  v.  City  of  Cheyenne,  22  Wyo.  212,  137  P.  876. 

A  domestic  judgment  rendered  in  a  court  of  general  juris- 
diction cannot  be  collaterally  attacked  unless  the  want  of 
jurisdiction  is  apparent  from  the  record. — Hahn  v.  Kelly, 
34  Cal.  391,  94  Am.  Dec.  342;  Davis'  Estate,  In  re,  151 
Cal.  318,  86  P.  183;  Ballerino  v.  Superior  Court,  2  Cal.  App. 
759,  84  P.  225;  Hughes  v.  Cummings,  7  Colo.  138,  2  P.  289; 
Great  West  Min.  Co.  v.  Woodmas  of  Alston  Min.  Co.,  14 
Colo.  90,  23  P.  908;  Mitchell  v.  Insley,  33  Kan.  654,  7  P. 
201;  Gillilan  v.  Murphy,  49  Neb.  779,  69  N.  W.  98;  Union 
Trust  Co.  v.  Atchison,  8  N.  M.  159,  42  P.  89;  Letney  v. 
Marshall,  79  Tex.  513,  15  S.  W.  586;  Oliver  v.  Bordner, 
(Tex.  Civ.  App.),   145   S.   W.   656;    Hoagland   v.  Hoagland, 

19  Utah  103,  57  P.  20. 

Contra:     Ewing  v.  Mallison,  65  Kan.  484,  70  P.  369. 
A  judgment  is  not  open    to    collateral  attack    on    the 
ground  that  it  was  obtained  by  fraud. — Morrill  v.  Morrill, 

20  Or.  96,  25  P.  362;   Murchison  v.  White,  54  Tex.  78. 
The  recitals  in  the  judgment   showing  service  may  be 

contradicted  by  facts  shown  by  the  original  summons  and 
return.— Boyle  v.  Oro  Plata  Min.  &  Mill.  Co.,  14  Ariz!.  484, 
131  P.  155;  Kavanagh  v.  Hamilton,  53  Colo.  157,  125  P. 
512;  Munson  v.  Pawnee  Cattle  Co.,  53  Colo.  337,  126  P.  275. 
Arkansas.  The  certified  copy  of  a  decree  alone  is  suffi- 
cient evidence  that  such  a  decree  has  been  made. — Den- 
ton v.  Roddy,  34  Ark.  642. 

California.  Where  there  is  no  service  of  summons  upon 
defendant  the  judgment  is  void  and  the  defense  of  want 
of  jurisdiction  may  be  interposed  in  an  action  on  the  judg- 


JUDGMENTS  387 

ment.— Hill  v.  City  Cab  &  Transfer  Co.,  79  Cal.  188,  21 
P.  728. 

Colorado.  The  right  to  attack  a  judgment  for  jurisdic- 
tional infirmity  or  for  fraud  is  not  confined  to  the  com- 
plaint. It  extends  as  well  to  the  answer  and  replication. 
— Hallack  v.  Loft,  19  Colo.  74,  34  P.  568. 

When  a  domestic  judgment  of  a  court  of  general  juris- 
diction is  offered  in  evidence  in  another  suit,  it  cannot 
be  attacked  collaterally  unless  the  record  proper  shows 
that  it  is  void  for  want  of  jurisdiction. — Kavanagh  v.  Ham- 
ilton, 53  Colo.  157,  125  P.  512. 

Kansas.  Judgment  based  upon  a  false  return  of  sum- 
mons may  be  impeached. — Martin  v.  Gray.   19  Kan.  458. 

A  judgment  resting  upon  the  unauthorized  appearance 
of  an  attorney  is  void. — Reynolds  v.  Fleming,  30  Kan.  106. 

In  a  habeas  corpus  case  the  entry  of  a  judgment  in  the 
district  court,  entered  in  the  ordinary  way  on  the  journals 
of  that  court  and  in  all  things  apparently  regular,  cannot 
be  overthrown  by  parol  testimony  that  such  entry  was 
ordered  and  directed  by  one  who  had  ceased  to  be  a  judge 
of  that  court,  and  while  assuming  to  act  outside  of  that 
district.— Watson,  In  re,  30  Kan.  753. 

Recitals  in  a  judgment  as  to  service  on  defendant  are 
conclusive  until  the  judgment  is  vacated  or  reversed  in 
direct  proceedings,  and  evidence  to  controvert  them  is  not 
admitted  in  collateral  proceedings,  as  in  an  action  to  try 
title.— Miller  v.  Miller,  89  Kan.  151.  130  P.  6S1. 
Nebraska.  The  facts  showing  jurisdiction  must  be 
stated  in  the  judgment. — Vandervort  v.  Finnell,  96  Neb. 
515,   148  N.  W.  332. 

Oregon.  A  decree  rendered  without  jurisdiction  does  not 
estop  anyone. — Furgeson  v.  Jones,   17   Or.  204,  20  P.   842. 

Judgment  cannot  be  attacked  aliunde  the  record  by 
parties  or  privies. — Morrill  v.  Morrill,  20  Or.  96,  25  P.  362. 
Texas.  The  presumption  is  in  favor  of  the  judgment  of  a 
court  of  general  jurisdiction,  unless  the  record  shows  that 
the  court  exceeded  its  jurisdiction. — Hill  &  Jahna  v. 
Lofton,   (Tex.  Civ.  App.),  165  S.  W.  67. 

A  personal  judgment  rendered  against  a  non-resident 
upon  service  of  citation,  or  nonresident  notice,  served  upon 


388  JUDGMENTS 

him  without  the  state,  is  void. — San  Bernardo  Townsite 
Co.  v.  Hocker,  (Tex.  Civ.  App.),  176  S.  W.  644. 

The  whole  record  will  be  examined  to  see  if  jurisdiction 
attached. — San  Bernardo  Townsite  Co.  v.  Hocker,  (Tex. 
Civ.  App.),  176  S.  W.  644. 

Washington.  Recitals  in  a  judgment,  as  to  matters  like 
service  or  appearance  of  defendant,  are  prima  facie  evi- 
dence of  the  facts  therein  stated.— Kline  Bros.  &  Co.  v. 
North  Coast  Fire  Ins.  Co.,  80  Wash.  609,  142  P.  7. 

FRAUD  AND  COLLUSION. 

A  judgment  may  be  impeached  for  fraud  by  a  stranger 
to  the  record. — Hackett  v.  Manlove,  14  Cal.  85;  Hallack 
v.  Loft,  19  Colo.  74,  34  P.  568;  Murchison  v.  White,  54  Tex. 
78;  Whiteselle  v.  Texas  Loan  Agency,  (Tex.  Civ.  App.), 
27  S.  W.  309;  Bonner  v.  Ogilvie,  24  Tex.  237,  58  S.  W.  1027. 

A  judgment  obtained  by  fraud  is  conclusive  unless  set 
aside  in  a  direct  proceeding. — People  v.  Perris  Irr.  Dist., 
132  Cal.  289,  64  P.  399;  Davis'  Estate,  In  re,  151  Cal.  318, 
86  P.  183;  Simpson  v.  Kimberlin,  12  Kan.  579;  Irwin  v. 
Bexan  County,  26  Tex.  Civ.  App.  527,  63  S.  W.  550;  Bud- 
long  v.  Budlong,  32  Wash.  672,  73  P.  783. 

A  party  to  a  judgment  cannot  impeach  it  or  set  it  aside 
in  a  collateral  proceeding  on  the  ground  that  it  was  ob- 
tained by  perjured  testimony. — Bleakley  v.  Barclay,  75 
Kan.  462,  89  P.  906;  Maddox  v.  Summerlin,  92  Tex.  483, 
49  S.  W.  1033;  Word  v.  Schow,  29  Tex.  Civ.  App.  120, 
68  S.  W.  192;  McDougall  v.  Walling,  21  Wash.  478,  58  P. 
669. 

Colorado.  In  an  action  upon  a  judgment,  a  defense  that 
it  was  procured  through  fraud  is  a  collateral  attack  and 
cannot  be  maintained. — Harter  v.  Shull,  17  Colo.  App.  162, 
67  P.  911. 

Judgments  may  be  attacked  for  fraud  by  answer  or  cross- 
complaint.— Relender  v.  Riggs,  20  Colo.  App.  423,  79  P.  328. 
Kansas.  The  judgment  of  a  court  having  jurisdiction  of 
the  parties  and  of  the  subject-matter  cannot  be  attacked 
collaterally  for  fraud  in  obtaining  it. — Morris  v.  Solder,  74 
Kan.  892,  88  P.  69. 

Nebraska.  A  judgment  obtained  by  collusion  between  a 
corporation  and  one  of  its  stockholders  may  be  set  aside 


JUDGMENTS  389 

by  the  others.— Gund  v.  Ballard,  73  Neb.  547,  103  N.  W. 
309. 

Texas.  Fraud  must  be  shown  by  extrinsic  evidence,  to  be 
weighed  by  the  court  or  jury  trying  the  case,  and  would 
not  constitute  an  objection  to  the  introduction  of  the  judg- 
ment in  evidence.— Hart  v.  Hunter,  52  Tex.  Civ.  App.  75, 
114   S.  W.  882. 

As  between  parties  and  privies  a  judgment  obtained  by 
fraud  is  not  absolutely  void,  but  voidable. — Young  v.  Bank 
of  Miami,   (Tex.  Civ.  App.),  150  S.  W.  1102. 


NOTE    XXIII. 
(To  Articles  39-47.) 

The  law  relating  to  the  relevancy  of  judgments  of  Courts 
of  Justice  to  the  existence  of  the  matters  which  they  assert 
is  made  to  appear  extremely  complicated  by  the  manner  in 
which  it  is  usually  dealt  with.  The  method  commonly  em- 
ployed is  to  mix  up  the  question  of  the  effect  of  judgments 
of  various  kinds  with  that  of  their  admissibility,  subjects 
which   appear  to  belong  to   different  branches  of   the   law. 

Thus  the  subject,  as  commonly  treated,  introduces  into 
the  Law  of  Evidence  an  attempt  to  distinguish  between  judg- 
ments in  rem,  and  judgments  in  personam  or  inter  partes 
(terms  adapted  from,  but  not  belonging  to,  Roman  law,  and 
never  clearly  defined  in  reference  to  our  own  or  any  other 
.system);  also  the  question  of  the  effect  of  the  pleas  of  autre- 
fois acquit,  and  autrefois  convict,  which  clearly  belong  not 
to  evidence,  but  to  criminal  procedure;  the  question  of  estop- 
pels, whioh  belongs  rather  to  the  law  of  pleading  than  to 
thai  "t"  evidence;  and  the  question  of  the  effect  given  to  the 
judgments  of  foreign  Courts  of  Justice,  which  would  seem 
more  properly  to  belong  to  private  International  law  These 
and  other  matters  are  treated  of  at  great  length  In  2  Ph.  Ev., 
1-7M,  ;in.l  T.  !•:.  ss.  1480-1534,  and  in  the  note  to  the  Duchess 
of  Kingston's  Case,  In  2  S.  I-.  C.  777-880.  Best  (ss.  588-595) 
treats   the   matter  more  concisely. 

The  text  is  confined  to  as  complete  a  statement  as  I  could 
make  of  the  principles  which  regulate  the  relevancy  of  judg- 
ments considered  as  declarations  proving  the  facts  which 
they  assert,  whatever  may  be  the  effect  or  the  use  to  be  made 
of  those  facts  when  proved.  Thus  the  leading  principle 
Btated  in  Article  10  is  equally  true  of  all  judgments  alike. 
Every  judgment,  whether  it  be  in  rem  or  inter  partes,  must 
and  does  prove  what  it  actually  effects,  though  the  effects  of 
different  sorts  of  judgments  differ  as  widely  as  the  effects  of 
different   sorts  of  deeds. 


390  JUDGMENTS 

There  has  been  much  controversy  as  to  the  extent  to  which 
effect  ought  to  be  given  to  the  judgments  of  foreign  courts 
in  this  country,  and  as  to  the  cases  in  which  the  courts  will 
refuse  to  act  upon  them;  but  as  a  mere  question  of  evidence, 
they  do  not  differ  from  English  judgments.  The  cases  on 
foreign  judgments  are  collected  in  the  note  to  the  Duchess  of 
Kingston's  Case,  2  S.  L.  C.  813-845.  There  is  a  convenient  list 
of  the  cases  in  R.  N.  P.  201-203.  The  cases  of  Godard  v. 
Gray,  L..  R.  6  Q.  B.  139,  and  Castrique  v.  Imrie,  L.  E.  4  R.  & 
I.  A.  414,  are  the  latest  leading  cases  on  the  subject. 

Article  47. 
foreign  judgments. 

The  provisions  of  Articles  40-46  apply  to  such 
of  the  judgments  of  Courts  of  foreign  countries 
as  can  by  law  be  enforced  in  this  country,  and  so 
far  as  they  can  be  so  enforced,  (a) 

FOREIGN   JUDGMENTS. 
Full  Faith  and  Credit. 

In  determining  the  faith  and  credit  to  be  given  to  the 
proceedings  of  the  courts  of  a  sister  state  under  the  fed- 
eral constitution  and  acts  of  congress,  the  question  of  the 
jurisdiction  of  the  court  of  the  sister  state  is  always  open 
to  inquiry.— Thum  v.  Pyke,  8  Ida.  11,  66  P.  157;  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Campbell,  5  Kan.  App.  423,  49  P.  321; 
Commonwealth  Mut.  Fire  Ins.  Co.  v.  Hayden,  61  Neb.  454, 
85  N.  W.  443;  Conant  v.  Deep  Creek  &  Curlew  Val.  Irr. 
Co.,  23  Utah  627,  66  P.  188. 

It  was  not  the  purpose  of  Const.  U.  S.,  art.  4,  §  1,  de- 
claring that  full  faith  and  credit  shall  be  given  to  the 
judgments  of  a  sister  state,  to  give  to  such  judgments  a 
more  conclusive  effect  when  sought  to  be  enforced  in  an- 
other state  than  they  would   be   entitled  to  in   the   state 

a  The  cases  on  this  subject  are  collected  in  the  note  on'  the 
Duchess  of  Kingston's  Case,  2  S.  L.  C.  813-845.  A  list  of  the 
cases  will  be  found  in  R.  N.  P.  221-223.  The  last  leading 
cases  on  the  subject  are  Godard  v.  Gray,  L>.  R.  6  Q.  B.  139, 
and  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App.  414.  See,  too, 
Schisby  v.  Westenholz,  L.  R.  6  Q.  B.  155,  and  Rousillon  v. 
Rousillon,    L.    R.    14   Ch.   Div.    370. 


JUDGMENTS  391 

where  rendered.— Culp,  In  re,  2  Cal.  App.  70,  83  P.  89; 
Babcock  v.  Marshall,  21  Tex.  Civ.  App.  145,  50  S.  W.  728. 
Kansas.  A  judgment  rendered  by  a  court  of  another  state 
may  be  pleaded  as  a  bar  to  an  action  for  the  same  cause 
in  this  state,  though  pending  before  the  foreign  judgment 
was  rendered. — Union  Pac.  Ry.  Co.  v.  Baker,  5  Kan.  App. 
253,  47  P.  563. 

Giving  to  the  proceedings  of  a  sister  state  the  same 
faith  and  credit  that  are  given  to  like  proceedings  by  the 
courts  of  such  sister  state  is  a  compliance  with  the  pro- 
visions of  the  federal  constitution  and  the  act  of  congress 
requiring  each  state  to  give  full  credit  to  the  judgments 
and  judicial  proceedings  of  the  sister  state. — Chicago,  R. 
I.  &  P.  Ry.  Co.  v.  Campbell,  5  Kan.  App.  423,  49  P.  321. 
Nebraska.  A  judgment  rendered  by  a  court  of  one  state 
is  entitled  to  full  faith  and  credit  in  the  courts  of  another 
state  only  to  the  extent  that  the  jurisdiction  appears  or 
may  be  presumed. — Commonwealth  Mut.  Fire  Ins.  Co.  v. 
Hayden,  61  Neb.  454,  85  N.  W.  443. 

Oklahoma.  It  is  no  defense  that  the  court  of  the  sister 
state  erred  in  its  judgment. — Blumle  v.  Kramer,  14  Okl. 
366,  79  P.  215. 

Want  of  Jurisdiction. 

The  court  of  a  foreign  state  is  presumed  to  have  juris- 
diction.—Cummings  v.  O'Brien,  122  Cal.  204,  54  P.  742; 
Hunter's  Adm'r  v.  Ferguson's  Adm'r,  13  Kan.  462;  Wester- 
velt  v.  Jones,  5  Kan.  App.  35,  47  P.  332. 
California.  Jurisdiction  of  court  of  another  state  pre- 
sumed though  no  service  shown. — Eickhoff's  Estate,  In  re, 
101  Cal.  600,  36  P.  11. 

It  may  be  shown  that  no  summons  had  been  served  in 
an  action  resulting  in  a  judgment  in  another  state. — 
Greenzweig  v.  Sterlinger,  103  Cal.  278,  37  P.  398. 
Texas.  The  burden  is  on  the  defendant  to  show  want  of 
jurisdiction  of  the  court  of  a  sister  state,  when  it  is  offered 
against  him. — Russell  v.  Butler,  (Tex.  Civ.  App.),  47  S. 
W.  406. 

Wyoming.  A  judgment  of  a  sister  state  may  be  impeached 
for  want  of  jurisdiction. — Bank  of  Chadron  v.  Anderson, 
6  Wyo.  518,  48  P.  197. 


392  JUDGMENTS 

Fraud. 

Kansas.  The  defendant  in  an  action  brought  in  this  state 
upon  a  judgment  rendered  in  a  sister  state,  may  defend 
on  the  ground  that  he  was  induced  to  submit  himself  to 
the  jurisdiction  of  the  court  of  the  sister  state  by  fraud 
on  the  part  of  the  plaintiff. — Abercrombie  v.  Abercrombie, 
64  Kan.  29,  67  P.  539. 

Nebraska.  Where  judgment  was  taken  in  another  state 
by  fraud,  such  fraud  can  be  shown  as  a  defense  to  an  action 
brought  on  such  judgment  in  this  state. — Keeler  v.  Elston, 
22  Neb.  310,  34  N.  W.  891. 

Texas.  Fraud  in  the  procurement  of  the  foreign  judg- 
ment may  be  shown.  (Agreement  to  dismiss  after  settle- 
ment, and  judgment  taken  after  defendant  had  departed 
the  state.) — Babcock  v.  Marshall,  21  Tex.  Civ.  App.  145, 
50  S.  W.  728. 

Wyoming.  Fraud  in  procuring  a  judgment  in  a  sister  state 
may  be  interposed  to  an  action  thereon  if  it  could  have 
been  a  defense  to  an  action  upon  the  judgment  in  the 
state  where  rendered. — Bank  of  Chadron  v.  Anderson,  6 
Wyo.  518,  48  P.  197. 


OPINIONS  393 

CHAPTER  V.* 

OPINIONS,  WHEN  RELEVANT  AND  WHEN  NOT. 

Article  48. 
opinion    generally    irrelevant. 

The  fact  that  any  person  is  of  opinion  that  a 
fact  in  issue,  or  "relevant  or  deemed  to  be  relevant 
to  the  issue,  does  or  does  not  exist  is  deemed  to 
be  irrelevant  to  the  existence  of  such  fact,  except 
in  the  cases  specified  in  this  chapter. 

Illustrations. 

(a)  The  question  is,  whether  A,  a  deceased  testator,  was 
sane  or  not  when  he  made  his  will.  His  friends'  opinions  as 
to  his  sanity,  as  expressed  by  the  letters  which  they  ad- 
dressed to  him  in  his  lifetime,  are  deemed  to  be  irrelevant. — 1 

(b)  [In  an  action  for  malicious  prosecution,  the  question 
is,  whether  defendant  related  to  his  counsel,  before  insti- 
tuting the  criminal  prosecution,  all  the  facts  and  circum- 
stances within  his  knowledge. 

A  question  put  to  defendant  by  his  counsel,  whether  before 
the  complaint  was  filed  he  detailed  to  his  attorney  all  of  the 
facts  and  circumstances  so  far  as  he  knew  or  was  able  to 
learn  at  the  time  with  reference  to  the  matter,  is  properly 
excluded  aa  culling  for  a  conclusion,  the  duty  to  infer  which 
was  the  duty  of  the  Jury.] — 2 

(c)  [A  divorced  husband  brought  habeas  corpus  to  recover 
possession  of  a  son  in  the  custody  of  his  former  wife. 

Persons  acquainted  with  the  parties  will  not  be  allowed 
to  testify  as  to  which  of  the  parents  they  consider  the  bet- 
ter qualified  to  have  custody  of  the  child.] — 3 

(d)  [The  question  is,  whether  or  not  it  was  the  Intention 
of  the   grantor  of  conveyances   to  his   granddaughters,   abso- 

1  Wright  v.  Doe  d.  Tatham,  7  A.  &  E.  313. 

2  [Jensen  v.  Halstead,  61  Neb.  249,  85   N.  W.  78.] 

3  [State    v.   Ciroux,   19  Mont.   149,   47  P.   798.] 


•See  Note  at  end  of  Chapter. 


394  OPINIONS 

lute  on  their  face,  that  they  should  be  considered  as  advance- 
ments. 

Testimony  of  witnesses  as  to  what  they  understood  was  the 
purpose  and  intention  of  the  grantor  in  executing  the  deeds 
is    inadmissible.] — 4  • 

(e)    [The  assured  in  a  life  policy  was  born  out  of  wedlock. 

Testimony  of  a  sister  of  his  mother  that  a  man  named  was 
his  father  is  irrelevant  as  being  mere  opinion.] — 5 

OPINIONS,  WHEN   RELEVANT. 
Nature  of  Opinion  Evidence. 

"The  later  and  changed  theory  (of  opinions  given  in  evi- 
dence), is  that  wherever  inferences  and  conclusions  can  be 
drawn  by  the  jury  as  well  as  by  the  witness,  the  witness  is^ 
superfluous,  and  thus  an  expert's  opinion  is  received  because 
and  whenever  his  skill  is  greater  than  the  jury's,  while  a  lay 
opinion  is  received  because  and  whenever  his  facts  cannot  be 
so  told  as  to  make  the  jury  as  able  as  he  to  draw  the  infer- 
ence. The  old  objection  is  a  matter  of  testimonial  qualifica- 
tions, requiring  personal  observation;  the  modern  one  rests 
on  considerations  of  policy  as  to  the  superfluity  of  the  testi- 
mony. In  the  old  sense,  'opinion' — more  correctly,  'mere 
opinion,' — is  a  guess,  a  belief  without  good  grounds;  in  the 
modern  sense,  'opinion'  is  an  inference  from  observed  and 
communicable   data." — 3   Wigmore  Ev.,   sec.    1917. 

Montana.  That  a  flat  car  is  placed  in  front  of  a  road  en- 
gine by  railroads  to  expedite  the  use  of  such  engine  in 
place  of  a  switch  engine,  is  a  question  of  fact  which  may 
be  testified  to  by  railroad  employes  from  their  personal 
knowledge  and  observation,  and  such  evidence  is  not  opin- 
ion evidence. — Prosser  v.  Montana  Cent.  R.  Co.,  17  Mont. 
372,  43  P.  81. 

In  determining  boundaries  of  conflicting  mining  claims, 
evidence  as  to  whether  or  not  a  surveyor  found  the  boun- 
daries without  assistance,  the  condition  of  the  monuments, 
whether  readily  found,  or  could  be  traced  from  one  to  an- 
other, are  matters  of  fact  and  not  opinions. — Bramlett  v. 
Flick,  23  Mont.  95,  57  P.  869. 


4  [McKnight  v.  Reed,  30  Tex.  Civ.  App.   204,  71  S.  W.   318.] 

5  [Mutual  Life  Ins.   Co.   v.   Good,   25  Colo.   App.   204,   136   P. 
821.] 


OPINIONS  395 

Nevada.  As  to  which  of  two  channels  the  water  of  a  creek 
would  flow  in  if  unobstructed,  may  be  testified  to  by  per- 
sons from  personal  observation,  and  is  not  opinion  evi- 
dence.—Winter  v.  Fulstone,  20  Nev.  260,  21  P.  201. 

Where,  because  they  are  unknown,  it  is  impossible  to 
apply  fixed  natural  laws  to  a  solution  of  the  problem, 
courts  must  resort  to  the  best  means  available  of  determ- 
ining, if  possible,  the  truth  of  the  case.  Hence  expert  tes- 
timony may  be  considered,  as  well  as  facts  established  by 
the  testimony  of  other  witnesses,  but  a  non-expert  witness 
may  not  be  permitted  to  testify  directly  to  the  ultimate 
facts  in  the  case. — McLeod  v.  Miller  &  Lux,  (Nev.),  153  P. 
566. 

North  Dakota.  A  witness  should  not  be  permitted  to  tes- 
tify as  to  his  "understanding"  of  the  terms  of  a  contract  to 
which  he  was  not  a  party. — Mulroy  v.  Jacobson,  24  N.  IX 
354,  139  N.  W.  697 

Oregon.  Opinions  of  witnesses  are  only  allowable  when 
from  the  nature  of  the  case  the  facts  cannot  be  stated  or 
described  in  such  a  manner  as  to  enable  those  whose  duty 
it  is  to  draw  inferences  and  conclusions  therefrom  to  form 
an  accurate  judgment  respecting  them,  and  no  better  evi- 
dence than  such  opinions  is  obtainable.— First  Nat.  Bank 
v.  Fire  Ass'n,  33  Or.  172,  53  P.  8;  State  v.  Barrett,  33  Or. 
194,  54  P.  807. 

Where  negligence  is  alleged  in  the  operation  of  cars  up 
and  down  an  incline,  by  permitting  the  signal  system  to 
get  out  of  repair,  and  in  the  manner  of  moving  cars,  the 
testimony  of  the  person  operating  the  cars  that  they 
might  have  been  operated  in  another  and  safer  manner  is 
evidence  of  facts,  not  inferences. — Ferrari  v.  Beaver  Hill 
Coal  Co.,  54  Or.  210,  102  P.  1016. 

Texas.  As  an  exception  to  the  rule  excluding  the  con- 
clusions and  opinions  of  a  witness,  common  observers  may 
testify  as  to  the  results  of  their  observation,  made  at  the 
time,  in  regard  to  common  appearances  or  facts,  and  a 
condition  of  things  which  cannot  be  reproduced  and  made 
palpable  to  the  jury.  (Witness  may  state  that  a  lady 
whom  he  saw  alight  from  the  running  board  of  a  street  car 


396  OPINIONS 

fell  because  she  must  have  slipped.) — McCabe  v.  San  An- 
tonio Traction  Co.,  39  Tex.  Civ.  App.  614,  88  S.  W.  387. 

An  opinion  or  conclusion  involving  both  a  question  of 
law  and  of  fact  is  inadmissible. — Railway  Co.  v.  Roberts, 
101  Tex.  418,  108  S.  W.  808;  Houston,  etc.,  R.  Co.  v.  Haw- 
kins &  Nance,  (Tex.  Civ.  App.),  167  S.  W.  190. 

An  opinion  may  be  admissible  in  evidence,  but  not  a 
mere  suspicion. — Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Roemer, 
(Tex.  Civ.  App.),  173  S.  W.  229. 

Wyoming.  Where  all  the  circumstances  can  be  fully  and 
adequately  described,  and  are  such  that  their  effect  can  be 
estimated  by  all  men,  without  special  knowledge  or  train- 
ing, opinions  of  witnesses  are  not  admissible. — Carney  Coal 
Co.  v.  Benedict,  22  Wyo.  362,  140  P.  1013. 

Grounds  for  Admission. 
California.  When  the  question  to  be  determined  is  the 
result  of  the  common  experience  of  all  men  of  ordinary 
education,  or  inference  from  certain  facts,  the  conclusion 
or  inference  must  be  drawn  by  the  jury;  and  the  opinion 
of  the  witness  cannot  be  received. — Parkin  v.  Grayson- 
Owen  Co.,  157  Cal.  41,  106  P.  210. 

Colorado.  It  is  not  true,  as  a  legal  proposition,  that  no 
one  but  an  expert  can  give  an  opinion  to  a  jury.  From 
necessity  of  the  case,  testimony  must  occasionally  be  a 
compound  of  fact  and  opinion.— Hanna  v.  Barker,  6  Colo. 
303. 

While  the  general  rule  is  that  the  opinion  of  a  witness 
is  inadmissible  except  when  the  inquiry  involves  a  ques- 
tion of  skill  or  science,  and  the  witness  possesses  a  pe- 
culiar knowledge  of  the  subject,  acquired  by  study  or  ex- 
perience, there  are  well  recognized  exceptions  to  the  rule, 
and  among  these  exceptions  are  instances  which  involve 
a  description  or  estimate  of  magnitude,  size,  dimension, 
velocity,  value,  etc.,  and  when,  from  the  nature  of  the 
subject  under  investigation,  it  i£  difficult  or  impossible  to 
state  with  sufficient  exactness,  or  in  detail,  the  facts,  with 
their  surroundings,  in  such  a  manner  as  to  produce  upon 
the  minds  of  the  jury  the  impression  that  a  personal  obser- 
vation has  produced  upon  the  mind  of  the  witness.  In 
such  cases  it  is  permissible  for  the  witness,  who  has  had 


OPINIONS  397 

the  benefit  of  personal  examination,  to  supplement  the 
statement  of  facts  detailed  by  him  with  his  opinion  or 
conclusion.  (Estimates  as  to  the  extent  the  carrying 
capacity  of  a  ditch  was  diminished  by  reason  of  inter- 
ference with  the  flow  of  water  therein,  caused  by  the 
change  of  its  channel  and  obstructions  placed  therein  by 
defendant,  admitted.)— Denver,  T.  &  Ft.  W.  Ry.  Co.  v. 
Pulaski  Irr.  Ditch  Co.,  19  Colo.  367,  35  P.  910. 

Opinions  which  are  the  result  of  experience  and  observa- 
tion, are  admissible. — Askew  v.  People,  23  Colo.  446,  48  P. 
524. 

Kansas.  An  exception  to  the  rule  that  a  witness  may  not 
give  his  individual  opinion  arises  whenever  the  question 
at  issue  is  outside  of  the  knowledge  and  experience  of 
ordinary  jurors,  or  where  it  so  partakes  of  the  nature  of 
science  or  trade  as  to  require  special  and  peculiar  knowl- 
edge or  skill  in  order  to  arrive  at  a  correct  conclusion, 
the  opinions  of  experts  are  admissible.  Another  excep- 
tion, founded  on  necessity,  under  which  the  opinions  of 
ordinary  witnesses  are  received,  arises  where  the  facts 
which  are  made  up  of  a  great  variety  of  circumstances, 
and  a  combination  of  appearances  which,  from  the  in- 
firmity of  language,  cannot  be  properly  described,  may  be 
shown  by  a  witness  who  has  observed  them,  and,  where 
the  observation  is  such  as  to  justify  it,  they  may  state  the 
conclusion  of  their  own  minds.  In  this  category  may  be 
placed  matters  involving  magnitude  or  quantities,  portions 
of  time,  space,  motion,  gravitation,  value,  and  such  as 
relate  to  the  conditions  or  appearances  of  persons  and 
things.-  State  v.  Baldwin,  36  Kan.  1,  12  P.  318. 

Witnesses  who  are  not  experts  may  give  their  opinion 
upon  stating  the  facts  on  which  their  opinion  is  based. — 
Atchison.  T.  &  S    F.  U.  Co.  v.  Miller,  39  Kan.  419,  18  P.  486. 

When  opinion  evidence  is  the  best  obtainable,  it  may 
be  received. — Missouri  &  Kansas  Tel.  Co.  v.  Vandevort, 
67  Kan.  269,  72  P.  771. 

Nebraska.  Where  the  facts  necessary  to  form  an  opinion 
can  be  placed  before  the  jury,  it  is  improper  to  allow  the 
witness  to  testify  except  to  such  facts. — Read  v.  Valley 
Land  &  Cattle  Co.,  66  Neb.  423,  92  N.  W.  622. 


400  OPINIONS 

The  opinions  of  those  who  are  acquainted  with  the  acts 
and  conduct  of  a  person  whose  mental   soundness   is  in 
question  are  admissible,  on  the  question  of  his  sanity: 
California:     Keithley's  Estate,   In   re,   134   Cal.   9,   66   P.   5 
(whether  testator  appeared  rational). 

Kansas:  Grimshaw  v.  Kent,  67  Kan.  463,  73  P.  92  (as  to 
mental  capacity  of  deceased  at  the  time  of  entering  into 
a  contract). 

Nevada:  State  v.  Lewis,  20  Nev.  345,  22  P.  241  (belief 
of  witness  as  to  sanity  or  insanity  of  accused,  admitted). 
North  Dakota:  State  v.  Barry,  11  N.  D.  428,  92  N.  W.  809 
(lay  opinion  of  mental  soundness  admissible,  when  based 
on  observed  facts). 

Oklahoma:  Queenan  v.  Territory,  11  Okl.  261,  71  P.  218 
(witness  may  be  asked  whether  certain  acts,  conduct  and 
appearance  testified  to  by  him  to  have  been  shown  by  de- 
fendant impressed  him  as  being  rational  or  irrational). 
Utah:  Christensen's  Estate,  In  re,  17  Utah  412,  53  P.  1003 
(opinion  as  to  sanity  or  insanity). 

Washington:  Higgins  v.  Nethery,  30  Wash.  239,  70  P.  489 
(mental  condition  of  testator  at  about  the  time  will  was 
made). 

Arkansas.  Before  the  opinion  of  a  non-expert  witness  on 
the  subject  of  insanity  or  mental  capacity  can  be  made 
admissible,  it  must  appear  that  such  intimate  and  close 
relations  have  existed  between  the  party  alleged  to  be 
under  disability  and  the  witness  as  to  fairly  lead  to  the 
conclusion  that  his  opinion  will  be  justified  from  his  op- 
portunities for  observing  the  party. — Schuman  v.  State, 
106  Ark.  362,  153  S.  W.  611;  Rogers  v.  Cunningham,  (Ark.), 
178  S.  W.  413;  Dewein  v.  State,  (Ark.),  179  S.  W.  346.  ' 
California.  One  who  is  acquainted  with  a  person  may  tes- 
tify as  to  his  appearance  at  a  given  time,  with  reference 
to  his  being  rational  or  irrational. — Holland  v.  Zollner, 
102  Cal.  633,  36  P.  930. 

One  who  has  known  another  for  three  months,  seen  him 
at  least  twice  a  day,  heard  him  converse  with  others  and 
observed  his  actions  and  conduct,  may  give  his  opinion 
as  to  such  person's  sanity. — People  v.  Vaughn,  14  Cal. 
App.  201,  111  P.  620. 


OPINIONS  401 

Colorado.  A  witness  may  be  permitted  to  give  his  opinion 
upon  the  question  of  a  person's  sanity,  after  stating  facts 
upon  which  he  bases  it/ — Denver  &  Rio  G.  R.  Co.  v.  Scott, 
34  Colo.  99,  81  P.  763. 

Idaho.  A  non-expert  may  be  as  able  as  an  expert  to  make 
clear  mental  comparisons  between  the  acts  and  conduct 
of  a  man  who  was  at  a  given  time  sane,  sound,  and  per- 
fectly competent,  and  his  acts  at  a  time  when  he  was 
laboring  under  mental  disabilities. — Weber  v.  Delia  Mount. 
Min.   Co.,   14  Ida.   404,  94  P.   441. 

Kansas.  Persons  knowing  one  whose  sanity  is  in  ques- 
tion may  give  their  opinion  as  to  his  sanity  or  mental 
condition  after  relating  the  facts  which  they  observed. — 
Baughman  v.  Baughman,  32  Kan.  538,  4  P.  1003. 
Nebraska.'  A  non-expert  witness  may,  after  detailing  the 
facts  and  circumstances  upon  which  he  bases  his  opinion, 
give  his  opinion  upon  the  question  of  sanity,  but  he  is  not 
permitted  to  express  his  opinion  without  disclosing  the 
facts  upon  which  it  is  based.— Shellenberger  v.  State,  97 
Neb.  498,  150  N.  W.  643. 

Nevada.  Acquaintanceship  of  four  months  seeing  a  per- 
son every  day,  during  such  time  observing  his  manner  of 
speech  and  seeing  him  the  day  before  and  conversing 
with  him  the  day  after  the  commission  of  the  crime  of 
which  he  was  accused,  renders  one  competent  to  testify  as 
to  such  person's  sanity. — State  v.  Lewis,  20  Nev.  333,  22 
P.  241. 

New  Mexico.  A  non-expert  cannot  testify  as  to  whether  a 
person  was  insane  or  not. — Territory  v.  Padilla,  8  N.  M. 
570,  46  P.  346. 

Texas.  One  who  shows  an  acquaintance  with  the  person 
whose  mental  capacity  is  in  Question,  and  a  familiarity 
wi»h  his  general  conduct,  may  testify  that  in  his  opinion 
such  person  is  of  sound  mind  without  specifying  the  facts 
upon  which  he  bases  his  belief. — Thornton  v.  McReynolds, 
(Tex.  Civ.  App.),  156  S.  W.  1144. 

Value  and  Amount  of  Damages. 
California.     The  respective  value  of  land  with  and  without 
underground  waters,  supplying  springs  thereupon  may  be 
shown  by  a  witness  who  has  seen  the  land  or  knows  its 


400  OPINIONS 

The  opinions  of  those  who  are  acquainted  with  the  acts 
and  conduct  of  a  person  whose  mental  soundness  is  in 
question  are  admissible,  on  the  question  of  his  sanity: 
California:  Keithley's  Estate,  In  re,  134  Cal.  9,  66  P.  5 
(whether  testator  appeared  rational). 
Kansas:  Grimshaw  v.  Kent,  67  Kan.  463,  73  P.  92  (as  to 
mental  capacity  of  deceased  at  the  time  of  entering  into 
a  contract). 

Nevada:  State  v.  Lewis,  20  Nev.  345,  22  P.  241  (belief 
of  witness  as  to  sanity  or  insanity  of  accused,  admitted). 
North  Dakota:  State  v.  Barry,  11  N.  D.  428,  92  N.  W.  809 
(lay  opinion  of  mental  soundness  admissible,  when  based 
on  observed  facts). 

Oklahoma:  Queenan  v.  Territory,  11  Okl.  261,  71  P.  218 
(witness  may  be  asked  whether  certain  acts,  conduct  and 
appearance  testified  to  by  him  to  have  been  shown  by  de- 
fendant impressed  him  as  being  rational  or  irrational). 
Utah:  Christensen's  Estate,  In  re,  17  Utah  412,  53  P.  1003 
(opinion  as  to  sanity  or  insanity). 

Washington:  Higgins  v.  Nethery,  30  Wash.  239,  70  P.  489 
(mental  condition  of  testator  at  about  the  time  will  was 
made). 

Arkansas.  Before  the  opinion  of  a  non-expert  witness  on 
the  subject  of  insanity  or  mental  capacity  can  be  made 
admissible,  it  must  appear  that  such  intimate  and  close 
relations  have  existed  between  the  party  alleged  to  be 
under  disability  and  the  witness  as  to  fairly  lead  to  the 
conclusion  that  his  opinion  will  be  justified  from  his  op- 
portunities for  observing  the  party. — Schuman  v.  State, 
106  Ark.  362,  153  S.  W.  611;  Rogers  v.  Cunningham,  (Ark.), 
178  S.  W.  413;  Dewein  v.  State,  (Ark.),  179  S.  W.  346. 
California.  One  who  is  acquainted  with  a  person  may  tes- 
tify as  to  his  appearance  at  a  given  time,  with  reference 
to  his  being  rational  or  irrational. — Holland  v.  Zollner, 
102  Cal.  633,  36  P.  930. 

One  who  has  known  another  for  three  months,  seen  him 
at  least  twice  a  day,  heard  him  converse  with  others  and 
observed  his  actions  and  conduct,  may  give  his  opinion 
as  to  such  person's  sanity. — People  v.  Vaughn,  14  Cal. 
App.  201,  111  P.  620. 


OPINIONS  401 

Colorado.  A  witness  may  be  permitted  to  give  his  opinion 
upon  the  question  of  a  person's  sanity,  after  stating  facts 
upon  which  he  bases  it. — Denver  &  Rio  G.  R.  Co.  v.  Scott, 
34  Colo.   99,   81  P.   763. 

Idaho.  A  non-expert  may  be  as  able  as  an  expert  to  make 
clear  mental  comparisons  between  the  acts  and  conduct 
of  a  man  who  was  at  a  given  time  sane,  sound,  and  per- 
fectly competent,  and  his  acts  at  a  time  when  he  was 
laboring  under  mental  disabilities. — Weber  v.  Delia  Mount. 
Min.  Co.,   14  Ida.   404,  94  P.   441. 

Kansas.  Persons  knowing  one  whose  sanity  is  in  ques- 
tion may  give  their  opinion  as  to  his  sanity  or  mental 
condition  after  relating  the  facts  which  they  observed. — 
Baughman  v.  Baughman,  32  Kan.  538,  4  P.  1003. 
Nebraska..  A  non-expert  witness  may,  after  detailing  the 
facts  and  circumstances  upon  which  he  bases  his  opinion, 
give  his  opinion  upon  the  question  of  sanity,  but  he  is  not 
permitted  to  express  his  opinion  without  disclosing  the 
facts  upon  which  it  is  based. — Shellenberger  v.  State,  97 
Neb.  498,  150  N.  W.  643. 

Nevada.  Acquaintanceship  of  four  months  seeing  a  per- 
son every  day,  during  such  time  observing  his  manner  of 
speech  and  seeing  him  the  day  before  and  conversing 
with  him  the  day  after  the  commission  of  the  crime  of 
which  he  was  accused,  renders  one  competent  to  testify  as 
to  such  person's  sanity. — State  v.  Lewis,  20  Nev.  333,  22 
P.  241. 

New  Mexico.  A  non-expert  cannot  testify  as  to  whether  a 
person  was  insane  or  not. — Territory  v.  Padilla,  8  N.  M. 
570,  46  P.  346. 

Texas.  One  who  shows  an  acquaintance  with  the  person 
whose  mental  capacity  is  in  question,  and  a  familiarity 
w'.h  his  general  conduct,  may  testify  that  in  his  opinion 
such  person  is  of  sound  mind  without  specifying  the  facts 
upon  which  he  bases  his  belief. — Thornton  v.  McReynolds, 
(Tex.  Civ.  App.),  156  S.  W.  1144. 

Value  and  Amount  of   Damages. 
California.     The  respective  value  of  land  with  and  without 
underground  waters,  supplying  springs  thereupon  may  be 
shown  by  a  witness  who  has  seen  the  land  or  knows  its 


402  OPINIONS 

character  and  condition,  or  the  market  value  of  lands  in 
the  vicinity  if  such  values  have  been  established. — De 
Freitas  v.  Town  of  Suisun  City,  170  Cal.  263,  149  P.  553. 
Colorado.  In  an  action  for  damages  to  real  property  by 
the  construction  of  a  railroad,  questions  asked  witness  as 
to  the  value  of  the  property  or  its  rental  value  before  the 
construction  of  the  railroad,  and  its  value  afterwards,  do 
not  invade  the  province  of  the  jury  by  calling  for  opinions 
as  to  the  damages  suffered. — Ft.  Collins  Dev.  Ry.  Co.  v. 
France,  41  Colo.  512,  518,  92  P.  953. 

Kansas.  In  arriving  at  the  compensation  for  a  right  of 
way,  witnesses  resident  in  the  neighborhood,  and  familiar 
with  the  property,  may  testify  as  to  its  value,  though  not 
basing  their  opinions  on  sales  of  the  same  or  similar  prop- 
erty.—Kansas  City  &   S.  W.  R.  Co.  v.  Ehret,  41  Kan.  22, 

20  P.  538;  Kansas  City  &  S.  R.  R.  Co.  v.  Baird,  41  Kan.  69, 

21  P.  227. 

Farmers  who  have  orchards  in  the  vicinity  are  compe- 
tent to  testify  as  to  the  value  of  plaintiff's  trees  destroyed 
by  fire.— Latham  v.  Brown,  48  Kan.  190,  29  P.  400. 

Amount  of  his  damages  to  broom  corn  cannot  be  testified 
to  by  plaintiff. — Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilkinson, 
55  Kan.  83,  39  P.  1043. 

Montana.  Witnesses  in  estimating  the  value  of  land  may 
consider  the  uses  to  which  it  may  be  put. — Sweeney  v. 
Montana  Cent.  Ry.  Co.,  25  Mont.  543,  65  P.  912. 

It  is  competent  for  an  expert  witness  to  base  his  opin- 
ion, as  to  value,  upon  a  description  of  the  article  iri  con- 
troversy. The  admissibility  of  such  opinion  rests  upon 
the  same  basis  as  an  opinion  given  in  answer  to  a  hypo- 
thetical question  incorporating  a  statement  of  facts,  and 
this  is  unaffected  by  the  exhibition  of  a  similar  article  for 
comparison.— Sullivan  v.  Girson,  31  Mont.  274,  102  P.  320. 

On  an  issue  of  value  of  pasturage  for  sheep,  one  who  has 
herded  sheep  for  many  years  and  familiar  with  the  lands 
in  question,  was  competent  to  give  an  opinion  as  to  the 
value  of  the  pasturage  on  such  lands  during  a  season  — 
Herrin  v.   Sieben,   46  Mont.  226,   127  P.   323. 


OPINIONS  403 

Nebraska.  Plaintiff  not  permitted  to  testify  to  the  amount 
of  damage  caused  to  her  dress  and  other  articles  destroyed 
in  transit.— Jameson  v.  Kent,  42  Neb.  412,  60  N.  W.  879. 

Nevada.  Witnesses  may  be  allowed  to  give  their  opinions 
on  questions  of  value,  for  the  reason  that  the  subject  may 
not  have  fallen  under  the  observation  of  the  jury,  and  the 
inquiry  is  allowed,  to  prevent  a  failure  of  justice. — Alt  v. 
California  Fig  Syrup  Co.,  19  Nev\  118,  7  P.  174. 
North  Dakota.  Owner  of  furniture  destroyed  by  fire  may 
testify  as  to  what  it  was  worth. — Seckerson  v.  Sinclair, 
24  N.  D.  625,  140  N.  W.  239. 

Texas.  It  is  error  to  permit  a  witness  to  testify  as  to  the 
value  of  property  he  has  never  seen,  unless  shown  to  be 
qualified  to  so  testify. — Lenhelet  v.  Piper,  (Tex.  Civ.  App.), 
133  S.  W.  480. 

A  witness  may  testify  as  to  the  market  value  of  cattle 
at  a  certain  place,  although  he  was  never  there. — San 
Antonio  &  A.  P.  Ry.  Co.  v.  Miller,  (Tex.  Civ.  App.),  137 
S.  W.  1194. 

Depreciation  in  market  value  of  cattle  caused  by  delay 
and  rough  handling  during  transportation  may  be  testified 
to  by  competent  witness. — St.  Louis,  B.  &  M.  Ry.  Co.  v. 
Wood  Bros.,  (Tex.  Civ.  App),  147  S.  W.  283. 
Utah.  The  rule  governing  the  competency  of  opinions  is 
not  so  strictly  applied  to  questions  of  value. — Salt  Lake 
Inv.  Co.  v.  Oregon  Short  Line  R.  Co.,   (Utah),  148  P.  439. 

Foreign    Law. 
Arkansas.     The  law  and  practice  of  another  state  may  be 
proven  by  depositions  of  persons  skilled  in  the  laws  and 
familiar    with    the    practice    of    such    state. — Barkman    v. 
Hopkins.   11  Ark.   157. 

California.  Under  §  1902  C.  C.  P.,  it  is  sufficient  if  a 
witness  be  skilled  in  the  law  of  a  foreign  country.  One 
whose  duty  it  was,  as  a  public  officer,  to  become  familiar 
with  the  laws  of  the  country  may  testify  as  to  what  the 
provisions  of  the  law  are. — Faber's  Estate,  In  re,  168  Cal. 
491,  143  P.  7::7. 

Kansas.  An  attorney-at-law,  practicing  in  a  foreign  state 
and  admitted  to  practice  in  all  the  courts  of  that  state,  is 


404  OPINIONS 

a  competent  witness  to  testify  as  to  its  laws. — Brenner  v. 
Luth,  28  Kan.  581. 

It  is  admissible  to  prove  the  law  of  another  state  by 
persons  learned  therein. — Palmer  v.  Hudson  River  State 
Hospital,  10  Kan.  App.  98,  61  P.  506. 

A  lawyer,  familiar  with  the  statutes  and  decisions  of 
another  state,  is  competent  to  testify  as  to  whether  a 
chattel  mortgage  witnessed  in  a  certain  way  is  valid  under 
the  law  of  such  state. — Woods  County  Union  Bank  v. 
Shore,  87  Kan.  140,  123  P.  880. 

Nebraska.  The  law  of  a  sister  state,  when  invoked  in  the 
determination  of  an  action,  and,  so  far  at  least  as  it  is 
not  statutory,  is  the  proper  subject  of  expert  testimony. — 
Barber  v.  Hildebrand,  42  Neb.  400,  60  N.  W.  594. 
Texas.  Though  parol  evidence  is  not  admissible  to  estab- 
lish the  fact  that  certain  paper  evidences  of  title  were 
sufficient  to  vest  title  under  the  laws  of  a  former  gov- 
ernment, yet  when  such  testimony  is  given  by  one  fami- 
liar with  such  laws,  who  was  himself  an  alcalde  who, 
in  an  official  capacity,  administered  the  law,  it  might  be 
valuable  as  evidencing  the  previous  contemporaneous  con- 
struction of  such  law. — State  v.   DeLeon,   64   Tex.  553. 

Washington.  A  person  learned  in  the  law  of  a  foreign 
state  or  country  may  give  evidence  as  to  what  the  law  of 
that  state  or  country  is,  but  when  the  text  of  the  law  of 
a  sister  state  is  before  the  court,  lawyers  should  "not  be 
allowed  to  testify  as  to  what  the  consensus  of  opinion  of 
the  bench  and  bar  of  such  other  state  might  be  as  to  its 
construction.  Its  construction  should  be  ascertained,  if 
possible,  from  the  courts  of  such  state,  otherwise  the 
trial  court  should  construe  it. — Clark  v.  Eltinge,  38  Wash. 
376,    80    P.    556. 

Opinion  of  Ownership. 
Ownership  of  personal  property  is  a  fact  to  which  a  wit- 
ness may  testify. — Benson  v.  Files,  70  Ark.  423,  68  S.  W. 
493;  Olson  v.  O'Connor,  9  N.  D.  504,  84  N.  W.  359;  Ft. 
Smith  &  W.  R.  Co.  v.  Winston,  40  Okl.  173,  136  P.  1075; 
Hess  v.  South  Dakota  Cent.  Ry.  Co.,  30  S.  D.  538,  139  N. 
W.  334. 


OPINIONS  405 

California.  A  husband  may  not  testify  that  money  which 
was  used  tor  the  payment  of  certain  land  was  the  separate 
property  of  the  wife. — Eaton  v.  Locey,  22  Cal.  App.  762,  136 
P.  534. 

Kansas.  A  witness  is  not  competent  to  testify  whether 
he  had  ever  parted  with  his  interest  in  a  farm. — Work  v. 
Work,  90  Kan.  683,  136  P.  236. 

North  Dakota.  A  question  as  to  whether  a  bank  exercised 
ownership  over  certain  notes  called  for  a  conclusion  and 
was  inadmissible. — Red  River  Valley  Nat.  Bank  v.  Mon- 
son.  11  N.  D.  423,  92  N.  W.  807. 

Oklahoma.  Ownership  of  personal  property  may  be  testi- 
fied to  as  a  fact  by  a  witness  having  requisite  knowledge 
of  the  circumstances. — Jantzen  v.  Emanuel  German  Bap- 
tist Church,  27  Okl.  473,  112  P.  1127. 

South  Dakota.  Plaintiff  may  testify  that  property  levied 
on  belonged  to  her  and  not  to  the  judgment  debtor. — 
Hawley  v.  Bond.  20  S.  D.  215.  105  N.  W.  464. 

Testimony  of  a  witness  that  he  was  the  owner  all  the 
time  of  land  that  he  had  put  in  his  wife's  name,  is  inad- 
missible.—Kjolseth  v.  Kjolseth,  27  S.  D.  80,  129  N.  W.  752. 
Texas.  A  witness  cannot  testify  as  to  who  owned  certain 
wood  when  seized  on  levy. — Cullers  v.  Gray,  (Tex.  Civ. 
Appi.   57   S.  W.   305. 

Plaintiff  may  testify  that  she  owned  certain  notes, 
where  the  whole  issue  of  the  case  did  not  depend  upon 
BDCta  ownership.  -O'Farrell  v.  O'Farrell.  56  Tex.  Civ.  App. 
51.  119   S.  W.   S99. 

Sundry  Topics. 
Arkansas.  One  fully  Qualified  from  experience,  may 
testify  that  he  could  toll  from  the  sound  of  a  railroad  train 
that  no  effort  was  made  to  stop,  although  his  view  of  the 
train  was  partially  obscured.— St.  Louis,  I.  M.  &  S.  Ry.  Co. 
v.   Dysart,  89   Ark.  261,   116  S.  W.   224. 

California.  Witnesses  may  testify  to  their  expression  of 
belief  that  defendant  was  the  person  they  had  seen,  though 
not  positively  and  beyond  a  doubt  identifying  him. — Peo- 
ple v.  Rolfe,  61  Cal.  540. 

The  question  being  the  state  of  health  of  plaintiff  during 
the   time   he   claimed   benefits,   witnesses  who   knew,   met 


406  OPINIONS 

and  talked  with  him  may  state  his  physical  appearance 
and  apparent  state  of  health. — Robinson  v.  Exempt  Fire 
Co.,  103  Cal.  1,  36  P.  955. 

One  who  has  been  engaged  for  fifteen  years  cultivating 
an  orchard  and  attending  to  its  water  supply,  may  state 
that  for  certain  seasons  there  was  not  enough  water  for 
proper  irrigation  of  the  orchard. — Thayer  v.  Tyler,  169 
Cal.   671,   147   P.   979. 

Colorado.  In  an  action  for  the  value  of  an  animal  killed 
at  a  railroad  crossing,  a  witness  familiar  with  the  sur- 
roundings was  properly  permitted  to  state  how  far  on  the 
track  from  the  crossing  he  could  see  an  animal  in  the  high- 
way approaching  it. — Rio  Grande  Western  R.  Co.  v.  Boyd, 
44  Colo.  119,  96  P.  781. 

Idaho.  The  assistance  of  chemistry  and  the  testimony  of 
expert  witnesses  are  not  necessary  to  show  the  existence 
of  blood,  owing  to  the  familiarity  of  all  persons  competent 
to  testify  as  witnesses  with  its  appearance;  and  it  is  only 
in  cases  where  it  is  necessary  to  distinguish  between  the 
blood  of  a  human  being  and  that  of  the  inferior  animals 
that  such  expert  evidence  is  necessary. — State  v.  Rice^  7 
Ida.  792,  66  P.  87. 

Kansas.  Family  resemblance  is  not  a  proper  subject  for 
expert  or  opinion  evidence. — Shorten  v.  Judd,  56  Kan.  43, 
42  P.  338. 

The  effect  of  sickness  upon  the  mental  capacity  may 
be  shown  by  medical  experts,  but  not  that  one  is  inca- 
pacitated to  make  a  conveyance.— Coblentz  v.  Putifer,  87 
Kan.  719,  125  P.  30. 

Nebraska.  Questions  of  identity,  handwriting,  quantity, 
form,  size,  age,  strength,  heat,  cold,  sickness  and  health, 
pain  and  suffering  and  concerning  various  mental  and 
moral  aspects  of  humanity,  such  as  disposition  and  temper, 
anger,  fear,  excitement,  intoxication,  veracity,  general 
character,  and  other  conditions  and  things,  both  moral  and 
physical  are  subjects  of  opinions  of  non-expert  witnesses 
derived  from  observation  when,  from  the  nature  of  the 
subject  under  investigation,  no  better  evidence  can  be 
obtained.— McKennan  v.  Omaha  &  C.  B.  St.  R.  Co.,  95  Neb. 
643,   149  P.   826. 


OPINIONS  407 

North  Dakota.  A  witness  may  testify  as  to  the  results 
of  what  he  saw,  such  evidence  being  a  statement  of  facts. 

•N  fZ  Mnjpuis  "A  uosJ9>i09S— O^B  B  3°  1°8»8  PUB  9Sjno0) 
D.  625,  i40  N.  W.  239. 

Oregon.  Witnesses,  except  upon  grounds  of  skill  and 
science,  are  not  allowed  to  give  their  opinions  as  evidence 
when  they  have  no  personal  knowledge  of  the  facts  of  the 
case.— Farmers'  &  T.  Nat.  Bank  v.  Woodell,  38  Or.  294, 
61  P.  837. 

The  likelihood  of  a  wind  arising  being  material,  a  wit- 
ness who  has  lived  in  the  country  many  years,  and  familiar 
with  climatic  conditions,  may  testify  that  at  that  particular 
season  a  wind  usually  arose  on  the  evening  of  a  hot,  sultry 
day,  such  as  that  under  consideration. — Lieuallen  v.  Mos- 
grove,  37  Or.  446,  61  P.  1022. 

Texas.  Witnesses  may  give  their  opinion  of  the  age  of  a 
person,  where  the  age  is  in  issue. — Bice  v.  State,  37  Tex. 
Cr.  R.  38,  38  S.  W.  803;  Simpson  v.  State,  45  Tex.  Cr.  R. 
320,  77  S.  W.  819. 

It  does  not  require  an  expert,  as  commonly  understood 
by  the  term,  to  testify  whether  certain  liquor  is  whiskey. 
—Johnson  v.  State,  (Tex.  Cr.  R.),  55  S.  W.  818. 

Whether  one  was  guilty  of  negligence  in  the  operation 
of  complicated  machinery,  is  admissible. — Gammel-States- 
man  Pub.  Co.  v.  Monfort,  (Tex.  Civ.  App.),  81  S.  W.  1029. 

The  substance  of  a  conversation  between  others  may  be 
testified  to  by  a  witness  although  he  cannot  give  the  pre- 
cise words  or  details,  but  only  his  impression  of  it. — Leland 
v.  Chamberlin,  56  Tex.  Civ.  App.  256,  120  S.  W.  1040. 

Custom  must  be  shown  by  direct  testimony  and  not  by 
opinion  or  reputation. — Standard  Paint  Co.  v.  San  Antonio 
Hardware  Co.,    (Tex.  Civ.  App.),  136  S.  W.  1150. 

An  opinion  as  to  what  cattle  would  weigh  at  destination, 
after  shipment,  may  be  given  by  a  witness  qualified  from 
experience  in  shipping  cattle. — Houston  Packing  Co.  v. 
Dunn,  (Tex.  Civ.  App.),  176  S.  W.  634. 

Opinion  of  witness  is  relevant  as  to  the  probable  yield 
of  crops  had  they  been  properly  irrigated. — Lone  Star 
Canal  Co.  v.  Brousaard,  (Tex.  Civ.  App.),  176  S.  W.  649. 


408  OPINIONS 

Whether,  judging  from  the  tracks,  horses  were  running 
or  walking,  is  admissible. — Taylor  v.  State,  (Tex.  Cr. 
R.),  180  S.  W.  242. 

Utah.  Where  the  question  of  agency  is  directly  involved, 
the  witness'  conclusion  that  he  is  the  agent,  is  objection- 
able, but  he  may  state  facts  and  circumstances  concerning 
himself  and  the  alleged  principal,  calculated  to  indicate 
agency. — McCornick  v.  Queen  of  Sheba  G.  M.  &  M.  Co., 
23  Utah  71,  63  P.  820. 

Witness  was  detailed  to  replace  a  workman  who  had 
just  been  injured  and  was  informed  by  him  how  the  injury 
occurred.  As  to  whether  or  not  he  appeared  to  realize 
danger,  witness  stated  in  testifying,  that  he  appeared  to 
realize  no  danger,  and  looked  at  witness  in  a  disgusted 
way,  as  much  as  to  say  that  witness  knew  nothing  about 
it.  This  statement  was  held  unobjectionable  as  a  conclu- 
sion.—Fritz  v.  Western  Union  Tel.  Co.,  25  Utah  263,  71 
P.  209. 

Good  or  bad  health;  a  weak  or  strong  voice;  or  a  change 
in  apparent  bodily  condition,  may  be  testified  to  by  non- 
experts.— Johnson  v.  Union  Pac.  R.  Co.,  35  Utah  285,  100 
P.  390. 

Wyoming.  That  it  would  take  an  experienced  man  to  tell 
by  sounding  whether  a  projecting  portion  of  a  coal  vein 
would  be  likely  to  fall,  is  admissible. — Carney  Coal  Co.  v. 
Benedict,  22  Wyo.  362,  140  P.  1013. 

Sources  of  Knowledge. 
Nevada.     If  a  non-expert  witness  has  had  sufficient  obser- 
vation to  enable  him  to  form  a  belief  upon  the  question 
he  is  a  competent  witness. — State  v.  Lewis,   20  Nev.   333, 
22  P.  241. 

Oklahoma.  Testimony  identifying  the  voice  or  handwrit- 
ing of  another  is  necessarily  a  matter  of  opinion,  but 
should  not  be  received  unless  the  witness  first  states  facts 
which  qualify  him  to  form  and  express  a  reasonably  re- 
liable opinion.— Blackburn  v.  State,  7  Okl.  Cr.  578,  124 
P.  1111. 

Oregon.  An  opinion  as  to  value  cannot  be  based  exclu- 
sively on  what  the  witness  has  been  told  that  the  article 


OPINIONS  409 

had  been  sold  for. — Oregon  R.  &  N.  Co.  v.  Eastlack,  54  Or. 
196,  102  P.  1011. 

A  witness  whose  only  knowledge  is  derived  from  an  ex- 
amination of  the  tracks  made  by  it  on  the  pavement,  can- 
not state  an  opinion  as  to  the  speed  of  the  automobile 
making  such  tracks. — Everart  v.  Fischer,  75  Or.  316,  147 
P.  189. 

Texas.  An  opinion  of  a  non-expert  witness  which  does  not 
rest  upon  facts  stated  by  him,  or  is  not  acquired  through 
the  use  of  his  senses,  is  not  admissible.  The  witness  may 
state  the  facts,  but  is  not  required  to  do  so,  so  long  as  he 
shows  that  he  had  means  and  opportunity  for  knowledge. 
— Guerra  v.  San  Antonio  Sewer  Pipe  Co.,  (Tex.  Civ.  App.), 
163  S.  W.  669. 

Ultimate   Issues  of  Case. 

It  is  error  for  an  expert  or  other  witness  to  give  an 
opinion  on  the  ultimate  fact  to  be  determined  by  the  jury: 
California:  Rawles  v.  Los  Angeles  Gas  &  Elec.  Corp'n. 
23  Cal.  App.  455,  138  P.  369  (testimony  of  a  remark  made 
by  a  third  person  that  "This  is  gross  carelessness  on  the 
part  of  this  party  that  dug  this  hole,"  inadmissible). 
Colorado:  Smuggler  Union  Min.  Co.  v.  Broderick,  25  Colo. 
16,  53  P.  169  (as  to  safety  of  a  stope  in  a  mine). 
Kansas:  Martin  v.  City  of  Columbus,  93  Kan.  79,  143  P. 
421  (that  a  sidewalk  crossing  was  not  in  proper  condition, 
or  what  repairs  were  needed  to  make  it  safe);  Healer  v. 
Inkman,  94  Kan.  594,  146  P.  1172  (whether  a  wall  was  left 
safe ) . 

Nebraska:  Central  City  v.  Morquis,  75  Neb.  233,  106  N. 
W.  221  (whether  crossing  a  bridge  with  a  traction  engine 
without  taking  certain  precautions  was  proper) ;  Gross  v. 
Omaha  &  C.  B.  St.  R.  Co.,  96  Neb.  390,  147  N.  W.  1121 
(whether  a  motorman  had  time  or  opportunity  to  stop  a 
car). 

North  Dakota:  Tetrault  v.  O'Connor,  8  N.  D.  15,  76  N.  W. 
225  (as  to  who  was  in  possession,  that  being  the  matter 
in  issue). 

Texas:  Long  v.  Smith,  (Tex.  Civ.  App.),  162  S.  W.  25 
(whether   a   dead    mother's    parents   or   the    father   living 


410  OPINIONS 

with  his  mother  were  the  most  suitable  parties  to  retain 
custody  of  the  child). 

Washington:  Anderson  v.  Seattle  Park  Co.,  79  Wash.  575, 
140  P.  698  (that  a  smooth  concrete  surface  when  wet  would 
constitute  a  dangerous  footing). 

California.  Witness  not  permitted  to  give  opinion  in  an- 
swer to  an  inquiry  embracing  whole  merits  of  case.  (That 
witness  was  working  for  a  certain  person,  the  question  of 
employment  being  in  itself  in  controversy.) — Winslow  v. 
Glendale  Light  &  Power  Co.,  164  Cal.  688,  130  Pa.  427. 
Colorado.  Plaintiff's  testimony  that  defendants,  husband 
and  wife,  were  co-partners,  and  the  wife  assumed  respon- 
sibility over,  and  acted  as  manager  of,  the  business,  is  in- 
admissible.—Kent  v.  Cobb,  24  Colo.  App.  264,  133  P.  424. 
Kansas.  A  witness  may  testify  that  a  machine  is  unsafe, 
where  its  mechanism  is  so  complicated  that  the  grounds 
of  the  opinion  cannot  be  fully  exhibited  to  the  jury. — 
Wells  v.  Swift  &  Co.,  90  Kan.  168,  133  P.  732. 
Montana.  Where  an  expert  testified  to  defects  in  the 
concrete  work  on  a  building,  it  was  improper  to  ask  him 
who,  in  his  opinion,  was  to  blame  for  such  defects. — Piper 
v.  Murray,  43  Mont.  230,  115  P.  669. 

Nebraska.  It  is  error  to  permit  an  expert  to  give  an  opin- 
ion on  the  ultimate  fact  to  be  determined  by  the  jury 
(whether  it  was  necessary  for  deceased  employe  killed 
by  accident,  to  do  what  he  did  do.) — Chicago,  R.  I.  &  P. 
Ry.  Co.  v.  Holmes,  68  Neb.  826,  94  N.  W.  1007. 
Nevada.  Witnesses  cannot  be  permitted  to  draw  infer- 
ences and  conclusions  as  to  the  danger  or  safety  of  a  saw. 
— Konig  v.  Nevada-California-Oregon  Ry.,  36  Nev.  181,  135 
P.  141. 

A  non-expert  witness  may  not  be  permitted  to  testify 
directly  to  the  ultimate  facts  in  the  case.— McLeod  v. 
Miller  &  Lux,    (Nev.),   153  P.  566. 

Oklahoma.  An  opinion  as  to  the  amount  of  damages 
plaintiff  sustained  by  his  injuries,  is  inadmissible. — Chi- 
cago, R.  I.  &  P.  R.  Co.  v.  Teese,  42  Okl.  188,  140  P.  1166. 
Texas.  Testimony  of  a  motorman  that  a  street  car  could 
not  be  stopped  in  time  to  avoid  an  accident,  is  inadmis-' 


OPINIONS  411 

sible. — El  Paso  Elec.  Ry.  Co.  v.  Davidson,  (Tex.  Civ.  App.), 
161  S.  W.  937. 

Utah.  An  expert  opinion  may  be  founded  on  the  case,  as 
proved  by  other  witnesses,  but  experts  cannot  give  their 
opinions  as  to  the  general  merits  of  the  case,  but  only 
opinions  upon  the  facts  proved. — Mangum  v.  Bullion  Beck 
&  C.  Min.  Co.,  15  Utah  534,  50  P.  834. 

Plaintiff's  testimony  as  an  expert  as  to  what  precautions 
should  be  taken  by  the  city  to  properly  guard  an  excava- 
tion into  which  his  automobile  was  driven,  is  inadmissible. 
—Sweet  v.  Salt  Lake  City,  43  Utah  306,  134  P.  1167. 
Washington.  Opinion  of  witness  that  a  contract  made 
with  a  railroad  by  an  advance  agent  of  a  show  was 
merged  in  a  contract  made  by  the  traveling  manager,  is 
irrelevant. — Auditorium  Theatre  Co.  v.  Oregon-Washing- 
ton R.  &  Nav.  Co.,  77  Wash.  277,  137  P.  489. 
Wyoming.  A  witness  may  state  his  persuasion  or  belief 
as  to  an  ultimate  fact,  when  such  persuasion  or  belief  is 
founded  on  facts  within  his  own  knowledge,  or  comes 
under  his  personal  observation. — Union  Pacific  Ry.  Co.  v. 
Gilland,  4  Wyo.  395,  34  P.  953. 

Article  49. 
opinions  of  experts  on  points  of  science  or  art. 

When  there  is  a  question  as  to  any  point  of 
science  or  art,  the  opinions  upon  that  point  of  per- 
sons specially  skilled  in  any  such  matter  are 
deemed  to  be  relevant  facts. 

Such  persons  are  hereinafter  called  experts. 

The  words  "science  or  art"  include  all  subjects 
on  which  a  course  of  special  study  or  experience 
is  necessary  to  the  formation  of  an  opinion,  (a) 
and  amongst  others  the  examination  of  handwrit- 
ing. 


a  1  S.  L.  C.  555,  7th  ed.    (note  to  Carter  v.  Boehm),  28  Vic, 
c.  18,  s.  18.      (3  Wigmore  Ev.,  §  1933  et  seq.) 


412  OPINIONS 

When  there  is  a  question  as  to  a  foreign  law 
the  opinions  of  experts  who  in  their  profession 
are  acquainted  with  such  law  are  the  only  admis- 
sible evidence  thereof,  though  such  experts  may- 
produce  to  the  Court  books  which  they  declare  to 
be  works  of  authority  upon  the  foreign  law  in 
question,  which  books  the  Court,  having  received 
all  necessary  explanations  from  the  expert,  may 
construe  for  itself,  (b) 

It  is  the  duty  of  the  judge  to  decide,  subject  to 
the  opinion  of  the  Court  above,  whether  the  skill 
of  any  person  in  the  matter  on  which  evidence  of 
his  opinion  is  offered  is  sufficient  to  entitle  him  to 
be  considered  as  an  expert,  (c) 

The  opinion  of  an  expert  as  to  the  existence  of 
the  facts  on  which  his  opinion  is  to  be  given  is  ir- 
relevant,  unless  he  perceived  them  himself,  (d) 

Illustrations. 

(a)  The  question  is,  whether  the  death  of  A  was  caused  by 
poison. 

The  opinions  of  experts  as  to  the  symptoms  produced  by 
the  poison  by  which  A  is  supposed  to  have  died,  are  deemed 
to  be  relevant. — 1 

(b)  The  question  is,  whether  A,  at  the  time  of  doing  a  cer- 
tain act,  was,  by  reason  of  unsoundness  of  mind,  incapable 
of  knowing  the  nature  of  the  act,  or  that  he  was  doing  what 
was  either  wrong  or  contrary   to   law. 

The  opinions  of  experts  upon  the  questions  whether  the 
symptoms  exhibited  by  A  commonly  show  unsoundness  of 
mind,  and  whether  such  unsoundness  of  mind  usually  renders 
persons   incapable   of   knowing   the   nature   of   the   acts   which 


b  Baron  de  Bode's  Case,  8  Q.  B.  250-267;  Di  Sora  v.  Phil- 
lips, 10  H.  L.  624;  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App. 
434;  see,  too,  Picton's  Case,  30  S.  T.  510-511.  (3  Wigmore 
Ev.,   §§  1952-1955.) 

c  Bristow  v.  Sequeville,  6  Kx.  275;  Rowley  v.  I.,.  &  N.  W. 
Railway,  L.  R.  8  Ex.  221;  In  the  Goods  of  Bonelli,  L.  R.  1  P. 
D.   69. 

d   1  Ph.  507;  T.  E.  s.  1278. 


OPINIONS  413 


they   do,   or  of  knowing   that   what   they   do    is   either   wrong 
or  contrary  to  law,  are  deemed  to  be  relevant. — 2 

(c)  The  question  is,  whether  a  certain  document  was  writ- 
ten by  A.  Another  document  is  produced  which  is  proved 
or  admitted  to  have  been  written  by  A. 

The  opinions  of  experts  on  the  question  whether  the  two 
documents  were  written  by  the  same  person  or  by  different 
persons,    are    deemed    to   be    relevant. — 3 

(d)  The  opinions  of  experts  on  the  questions,  whether  in 
illustration  (a)  A's  death  was  in  fact  attended  by  certain 
symptoms;  whether  in  illustration  (b)  the  symptoms  from 
which  they  infer  that  A  was  of  unsound  mind  existed; 
whether  in  illustration  (c)  either  or  both  of  the  documents 
were  written  by  A,  are  deemed  to  be  irrelevant. 

(e)  [The  question  is,  whether  it  was  necessary  and  con- 
venient for  defendant  to  sound  a  whistle  at  stated  hours  to 
notify  its  employes  in  the  shops  to  commence  and  quit  work. 

The  opinions  of  master  mechanics  as  to  whether  it  was 
thus  necessary  is  irrelevant.] — 4 

(f)  [Plaintiff  sued  for  injuries  received  while  hauling 
trucks  with  a  horse  furnished  by  his  employer,  the  horse  be- 
coming unmanageable. 

Testimony  of  expert  witnesses  that  in  their  opinion  the 
horse  was  not  a  safe  one  for  the  work  is  inadmissible,  as  this 
was  the  ultimate  question   to  be  determined  by  the  jury.] — 5 

(g)  [The  question  is,  whether  the  keeping  of  cows  in  con- 
nection with  a  hotel   is  unprofitable. 

The  opinion  of  a  person  as  an  expert  on  the  subject  is  in- 
admissible, it  being  a  matter  of  general  knowledge.] — 6 

(h)  [The  question  is,  in  an  action  for  damages  for  death, 
alleged  to  have  been  caused  by  defendant's  train  breaking 
through  a  trestle,  what  would  be  the  effect  of  the  unsound- 
ness of  any  of  the  timbers  supporting  the  trestle. 

The  opinion  of  an  expert  as  to  the  effect  is  irrelevant.] — 7 

(i)  [The  question  is,  whether  vibrations  caused  by  running 
trains  over  a  liigh  trestle  will  loosen  the  nails  with  which 
it  is  put  together. 

The  opinion  of  an  expert  upon  this  matter  is  relevant.] — 8 

1  R.  v.  Palmer  (passim).  See  my  "Gen.  View  of  Crim. 
Law,"    357. 

2  R.  v.  Dove    (passim).     Gen.   View  Crim.   Law,  391. 

3  28   Vict.,   c.    18,   s.    8. 

4  [Powell   v.   Nevada,  C.  &  O.   Ry.,   28  Nev.   40,  78  P.  978.] 

5  [Marks  v.  Columbia  County  Lumber  Co.,  77  Or.  22,  149 
P.   1041] 

6  [Smith   v.   Stevens,   33   Colo.    427,   81   P.   35.] 

7  [Bowen  v.  Sierra  Lumber  Co.,  3  Cal.  App.,  312,  84  P.  1010.] 

8  [Id] 


414  OPINIONS 

OPINIONS  OF  EXPERTS. 
Qualification  as  Expert. 
California.  Questions  as  to  the  rate  of  speed  at  which 
cars  or  other  vehicles  may  travel,  strictly  speaking,  do 
not  constitute  a  subject  of  expert  testimony,  nor  come 
within  the  provisions  of  §  870,  subdivision  9,  C.  C.  P.; 
but  where  it  appears  that  a  witness  has  experience  in  ob- 
serving and  noting  speed  at  which  vehicles  have  been 
drawn,  his  testimony,  not  to  qualify  him  as  an  expert,  but 
to  show  that  he  had  been  in  the  habit  of  making  observa- 
tions of  the  speed  at  which  racing  horses  traveled  and 
tending  to  show  that  he  was  better  able  to  form  a  more 
reasonable  judgment  as  to  the  rate  of  speed  of  the  car 
in  question  than  he  otherwise  would  have  been,  was  prop- 
erly admitted. — Kramm  v.  Stockton  Elec.  R.  Co.,  22  Cal. 
App.  737,  136  P.  523. 

Texas.  In  the  absence  of  an  attack  upon  the  professional 
reputation,  skill,  and  ability  of  an  expert  witness,  testi- 
mony that  he  was,  or  bore  the  reputation  of  being,  com- 
petent and  skillful  in  his  profession,  is  inadmissible. — 
Missouri,  K.  &  T.  Ry.  Co.  v.  Burk,  (Tex.  Civ.  App.),  162 
S.  W.  457. 

Grounds  for  Admission. 
Arkansas.  The  opinions  of  experts  are  admissible  on  the 
ground  that  they  are  presumed  to  have  acquired  more  skill 
and  knowledge,  and  are  more  capable  of  forming  a  correct 
opinion  than  inexperienced  persons. — American  Bauxite 
Co.  v.  Dunn,  (Ark.),  178  S.  W.  934. 

California.  Matters  not  coming  within  the  common  knowl- 
edge and  experience  of  men  may  be  testified  to  by  wit- 
nesses experienced  or  having  special  knowledge  thereof, 
because  such  witnesses  would  be  assumed  to  be  nearer 
correct  in  their  conclusions  than  men  of  no  more  than  or- 
dinary experience. — People  v.  Lovren,  119  Cal.  88,  51  P.  22. 
Where  the  question  is  such  that  it  cannot  be  assumed 
that  an  ordinary  person  has  such  knowledge  or  experience 
as  would  qualify  him  to  determine  it  intelligently,  expert 
evidence  is  necessary. — People  v.  Camp,  26  Cal.  App.  385, 
147  P.  95. 


OPINIONS  415 

Witnesses  .skilled  in  any  science,  art,  trade,  or  occupa- 
tion may  be  permitted  to  give  their  opinions  as  experts,  as 
such  witnesses  are  supposed,  from  their  experience  and 
study,  to  have  peculiar  knowledge  upon  the  subjects  which 
jurors  generally  have  not. — Vallejo  &  N.  R.  Co.  v.  Reed 
Orchard  Co.,  169  Cal.  545,  147  P.  238;  People  v.  Camp,  26 
Cal.  App.  385,  147  P.  95. 

Where  the  question  is  such  that  it  cannot  be  assumed 
that  an  ordinary  person  has  such  knowledge  or  experience 
as  would  qualify  him  to  determine  it  intelligently,  expert 
evidence  is  necessary.— People  v.  Camp,  26  Cal.  App.  385, 
147  P.  95. 

Colorado.  A  question  of  science,  skill,  and  experience,  is 
proper  for  the  opinion  of  experts,  based,  if  necessary,  upon 
a  hypothetical  question  properly  framed. — Colorado  Mid. 
Ry.  Co.  v.  O'Brien,  16  Colo.  219,  27  P.  701. 

An  expert  is  one  who  has  superior  knowledge  of  a  sub- 
ject and  is  therefore  able  to  afford  the  tribunal  having  the 
matter  under  consideration  a  special  assistance,  and  his 
knowledge  may  have  been  acquired  by  professional,  scien- 
tific, or  technical  training  or  by  practical  experience  in 
some  field  of  human  activity  conferring  on  him  a  special 
knowledge  not  shared  by  man  in  general. — Bradford  v.  Peo- 
ple, 22  Colo.  157,  43  P.  1013. 

Idaho.  It  is  only  where  there  is  a  doubt  as  to  whether  the 
blood  is  that  of  a  human  being  or  that  of  some  inferior 
animal  that  the  aid  of  expert  witnesses  is  necessary. — 
State  v.  Rice,  7  Idaho  762,  66  P.  87. 

Kansas.  Expert  evidence  is  admissible  in  proof  of  matters 
not  clearly  falling  within  the  range  of  common  experience 
or  observation.— State  v.  Walke,  69  Kan.  183,  76  P.  408. 

If  a  witness  has  acquired  peculiar  knowledge  or  skill, 
by  experience,  observation,  or  practice,  on  a  subject  with 
which  the  mass  of  mankind  is  not  supposed  to  be  ac- 
quainted, he  may  give  his  opinion  on  it. — Warfield  v.  Mor- 
gan, 86  Kan.  524,  121  P.  489;  State  v.  Nordmark,  84  Kan. 
628,  114  P.  1068. 

The  purpose  of  expert  testimony  is  to  advise  the  jury 
concerning  a  matter  which  may  not  be  determined  by  the 
concrete  facts  of  the  case,  or  from  such  facts  in  connec- 


416  OPINIONS 

tion  with  their  own  knowledge  in  common  with  the  rest 
of  mankind.— Coblentz  v.  Putifer,  87  Kan.  719,  125  P.  30. 
Montana.  As  a  general  proposition  there  are  two  classes 
of  cases  in  which  expert  testimony  is  admissible.  Those 
cases  in  which  the  conclusions  to  be  drawn  by  the  jury 
depend  upon  the  existence  of  facts  which  are  not  common 
knowledge  and  which  are  peculiarly  within  the  knowledge 
of  men  whose  experience  or  study  enables  them  to 
speak  with  authority  upon  the  subject.  If,  in  such  cases, 
the  jury  with  all  the  facts  before  them  can  form  a  conclu- 
sion thereon,  it  is  their  sole  province  to  do  so.  To  the 
other  class  belong  those  cases  in  which  the  conclusions  to 
be  drawn  from  the  facts  stated,  as  well  as  knowledge  of 
the  facts  themselves,  depend  upon  professional  or  scien- 
tific knowledge  or  skill  not  within  the  range  of  ordinary 
training  or  intelligence.  In  such  cases  not  only  the  facts, 
but  the  conclusions  to  which  they  lead,  may  be  testified 
to  by  qualified  experts. — Copenhaver  v.  Northern  Pac.  Ry. 
Co.,  42  Mont.  453,  113  P.  467. 

Section  7887,  Rev.  Code,  means  that  an  expert  witness 
may  give  his  opinion  upon,  or  about,  a  question  of  science, 
art,  or  trade. — Copenhaver  v.  Northern  Pac.  Ry.  Co.,  42 
Mont.   453,    113   P.  467. 

Nebraska.  If  there  is  any  element  of  science,  or  skill,  in 
a  matter  under  investigation,  it  is  not  reversible  error  to 
admit  expert  testimony  thereon,  even  though  the  element 
of  science  is  slight.— Clawson  v.  State,  96  Neb.  499,  148 
N.  W.  524. 

New  Mexico.  The  ground  upon  which  expert  evidence  is 
admissible  is  that  the  witness  has  peculiar  knowledge  or 
experience  not  common  to  the  world. — Miera  v.  Territory, 
13  N.  M.  192,  81  P.  586. 

North  Dakota.  Expert  testimony  is  admissible  in  many 
cases  because  the  subject  of  the  litigation  relates  to  or 
involves  matters  which  human  kind  in  general  are  incom- 
petent to  form  or  offer  opinions  on,  and  it  becomes  neces- 
sary to  call  upon  those  who  have  made  a  special  study  of 
the  subject  under  consideration. — Hintz  v.  Wagner,  25  N. 
D.  110,  140  N.  W.  729. 


OPINIONS  417 

Oklahoma.  An  expert  witness  is  one  whose  possession  of 
special  knowledge  renders  his  opinion  admissible  upon  a 
state  of  facts  within  his  specialty,  without  regard  to  the 
manner  in  which  the  facts  are  established,  and  without 
requiring  that  they  should  have  come,  in  whole  or  in  part, 
under  the  personal  observation  of  the  witness.  On  the 
other  hand,  the  sole  ground  upon  which  a  witness  may 
give  an  opinion  as  to  matters  of  ordinary  knowledge,  is 
that  they  not  only  came  within  his  personal  observation, 
but  that  they  come  into  proof  so  blended  with  the  opinion 
to  which  they  give  rise  that  it  is  receivable  in  proof  as  a 
substitute  for  a  specification  of  the  host  of  circumstances 
that  called  it  forth.  Every  business  or  employment  which 
requires  peculiar  knowledge  or  experience  and  which  has 
a  certain  class  of  persons  devoted  to  its  pursuit,  is  included 
in  the  term  "art  or  trade";  and  any  person  who,  by  study 
and  experience,  has  acquired  this  peculiar  knowledge  or 
practical  skill  may  be  allowed  to  give  in  evidence  his  opin- 
ions upon  matters  of  technical  knowledge  and  skill. — 
Miller  v.  State,  9  Okl.  Cr.  255,  131  P.  717. 

Witnesses  having  special  knowledge  of  matters  in  issue 
of  which  an  ordinary  person  would  know  nothing,  should 
be  allowed  to  give  their  opinions. — Great  Western  Coal 
&  Coke  Co.  v.  Malone,  39  Okl.  693,  136  P.  403. 

When  conditions  are  such  that  the  jury  cannot  under- 
stand just  what  the  facts  are,  or  in  cases  where  they  may 
be  materially  enlightened  as  to  what  facts  existed,  experts 
should  be  allowed  to  testify. — Henry  v.  Morris  &  Co.,  42 
Okl.  13,  140  P.  413. 

Oregon.  Expert  testimony  is  employed  where  a  question 
of  science,  art,  or  trade,  is  involved,  and  the  person  as- 
severating is  specially  skilled  therein;  it  is  not  sufficient 
to  warrant  its  introduction  that  the  witness  may  know  more 
of  the  subject  of  inquiry,  and  may  better  comprehend  and 
understand  it,  than  the  jury,  but  the  Inquiry  must  relate 
to  some  one  of  the  subjects  wherein  skill  imparts  a  su- 
perior knowledge,  which  persons  of  average  intelligence 
may  not  be  presumed  to  possess. — Nutt  v.  Southern  Pacific 
Co.,  25  Or.  291,  35  P.  653;  First  Nat.  Bank  v.  Fire  Ass'n, 
33  Or.  172,  53  P.  8. 


418  OPINIONS 

Opinions  of  witnesses  are  only  allowable  on  the  ground 
of  necessity,  because  the  facts  cannot  be  presented  or 
depicted  precisely  as  they  appear  to  the  witness,  and  it  is 
impracticable,  from  the  nature  of  the  subject,  for  him  to 
relate  the  facts  without  supplementing  their  description 
with  his  conclusions.— State  v.  Barrett,  33  Or.  194,  54  P.  807. 
Opinion  of  experts  respecting  a  subject-matter  about 
which  persons  of  common  knowledge,  having  no  particular 
training  or  special  study,  such  as  the  jury,  are  capable  of 
forming  accurate  opinions  and  deducing  correct  conclu- 
sions, is  not  admissible. — Farmers*  &  T.  Nat.  Bank  v. 
Woodell,  38  Or.  294,  61  P.  837. 

Common  and  ordinary  methods  of  procedure  may  be 
parts  of  common  knowledge,  yet,  in  some  instances,  there 
may  be  a  scientific  side  to  the  question  and  matters  may 
arise  involving  technical  knowledge  outside  the  domain 
of  the  average  jury.  In  such  cases  it  is  permissible  to 
permit  skilled  witnesses  to  express  opinions  to  aid  the 
jury  in  arriving  at  a  correct  decision,  but  caution  must  be 
exercised  to  prevent  such  witnesses  from  trenching  upon 
the  province  of  the  jury,  and  from  expressing  opinions 
upon  abstract  questions  of  science  having  no  proper  rela- 
tion to  the  facts  in  controversy.— Netter  v.  Edmunson,  71 
Or.  604,  143  P.  636. 

South  Dakota.  The  ground  upon  which  expert  testimony 
is  permitted  is  that  in  a  great  variety  of  cases  where  the 
subjects  under  investigation  are  wholly  unfamiliar  to  the 
court  and  jury  there  would  be  no  adequate  mode  of  arriv- 
ing at  any  satisfactory  conclusion,  if  expert  testimony  were 
rejected.— Thompson  v.  Reed,  29  S.  D.  85,  135  N.  W.  679. 
Utah.  Where  the  subject-matter  of  the  inquiry  is  of  such 
a  character  as  to  lie  within  the  common  experience  of  men 
moving  in  the  ordinary  walks  of  life,  opinions  of  experts 
are  inadmissible. — Fritz  v.  Western  Union  Tel.  Co.,  25 
Utah   263,   71   P.   209. 

Washington.  If  a  witness  is  shown  to  have  peculiar  skill 
and  knowledge  concerning  the  subject  of  the  inquiry  gained 
by  observation,  personal  experience,  or  study,  not  pos- 
sessed by  men  in  the  common  walks  of  life,  he  is  an  expert 


OPINIONS  419 

and   competent  to   give   an   opinion. — State   v.   Smails,   63 
Wash.  172,  115  P.  82. 

Medical  and  Surgical  Matters. 
Arkansas.  Physicians  may  base  opinions  upon  what  may 
be  termed  the  clinical  history  of  the  case,  as  well  as  excla- 
mations of  the  injured  party,  and  other  verbal  indications 
of  pain  and  inability  of  the  party  to  handle  himself,  where 
there  are  no  outward  indications  of  injury. — Biddle  v. 
Riley,  118  Ark.  206,  176  S.  W.  134;  Prescott  &  N.  W.  Ry. 
Co.  v.  Thomas,   114  Ark.  56,  167  S.  W.  486. 

But  a  physician  cannot  give  his  opinion  of  his  patient's 
bodily  condition  from  a  history  of  his  case  related  to  the 
physician  by  the  patient. — St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Williams,  108  Ark.  387,  158  S.  W.  494. 
California.  To  show  the  position  of  a  wound  and  the 
course  of  the  bullet  causing  same,  a  physician  who  had  ex- 
amined the  body  may  state  the  course  of  the  bullet  from 
the  time  of  its  entrance  into  the  body  to  where  it  struck 
a  bone  and  its  course  was  changed. — People  v.  Fossetti, 
7  Cal.  App.  629,  95  P.  384. 

Experts  may  testify  as  to  the  means  which  might  have 
been  employed  in  producing  wounds  upon  a  human  body. 
—People  v.  Sampo,  17  Cal.  App.  135,  118  P.  957. 
Colorado.  What  is  or  is  not  proper  practice  in  examina- 
tion and  treatment,  or  the  usual  practice  and  treatment  of 
a  patient  by  a  physician,  is  a  question  for  experts,  and 
can  be  established  only  by  their  testimony. — McGraw  v. 
Kerr.  23  Colo.  App.  163,  128  P.  870.  . 
Kansas.  A  medical  expert  witness  is  not  confined  wholly 
to  his  personal  experience  in  the  treatment  of  men,  but 
his  opinions  formed  in  part  from  the  reading  of  works 
prepared  by  persons  of  acknowledged  ability  may  be  given 
in  evidence,  so  he  may  refresh  his  recollection  by  refer- 
ence to  standard  authorities;  but  the  judgment  or  opinion 
which  he  gives  must  be  his  own,  and  not  merely  that  of 
the  author.— State  v.  Baldwin,  36  Kan.  1,  12  P.  318. 

That  a  woman  was  quick  with  child  may  be  shown  from 
the  result  of  an  examination  after  her  death. — State  v. 
Hatch,  83  Kan.  613,  112  P.  149. 


420  OPINIONS 

It  is  proper  to  take  opinions  of  experts  as  to  the  effect 
sickness  would  have  upon  the  mental  capacity  of  a  per- 
son, but  opinions  as  to  capacity  of  such  person  to  make  a 
conveyance  of  property  is  incompetent. — Coblentz  v.  Puti- 
fer,  87  Kan.  719,  125  P.  30. 

To  prove  that  a  certain  compound  was  administered  to 
a  person,  witnesses  may  testify  that  the  compound  was 
of  the  same  odor  as  that  submitted  to  them  for  compari- 
son.—State  v.  Buck,  88  Kan.  114,  127  ?.  631. 
Montana.  Where  a  physician  gives  his  opinion  that  by 
means  of  a  surgical  operation  injury  to  a  person  could  be 
cured,  he  may  not  be  asked  if  he  had  offered  to  perform 
such  operation  without  charge. — Allen  v.  Bear  Creek  Coal 
Co.,  43  Mont.  269,  115  P.  673. 

Nebraska.  An  expert  medical  witness  may  examine  a 
plaintiff  suing  for  malpractice  and  state  what  ligaments 
will  need  to  be  severed  in  removing  a  bone  in  his  hand, 
also  whether  there  was  any  method  of  cure  without  re- 
moving the  bone. — Johnson  v.  Winston,  68  Neb.  425,  94  N. 
W.  607. 

Oregon.  A  physician  having  examined  a  wound  and  de- 
scribed it  to  the  jury  may  state  what  effect  it  would  have 
on  the  mental  condition  of  the  person  receiving  it,  and 
the  question  need  not  be  propounded  in  hypothetical  form. 
—State  v.  Megorden,  49  Or.  259,  88  P.  306. 

Texas.  A  graduated  chemist  of  several  years'  experience 
who  made  an  analysis  of  the  stomach  of  deceased,  may 
testify  as  to  how  much  strychnine  sulphate  would  pro- 
duce death,  and  as  to  the  amount  thereof  he  found  by 
means  of  the  investigation. — Hand  v.  State,  (Tex.  Cr.  R.), 
179  S.  W.  1155. 

A  physician  may  give  his  opinion  whether  or  not  the 
weapon  described  would  be  a  deadly  weapon  in  the  hands 
of  a  person  the  size  of  defendant  by  striking  another  in 
the  temple  while  he  was  asleep. — Wilganowski  v.  State, 
(Tex.  Cr.  R.),  180  S.  W.  692. 

An  expert  in  giving  an  opinion  as  to  sanity  may  take 
into  consideration  the  acts,  conduct  and  demeanor  of  de- 


OPINIONS  421 

fendant  during  the  trial  on  a  criminal  charge. — Mikeska 
v.  State,   (Tex.  Cr.  R.),  182  S.  W.  1127. 

Washington.  A  physician  may  testify  as  to  the  general 
effect  of  a  drug  upon  the  mental  faculties,  but  cannot  give 
an  opinion  as  to  its  effect  on  the  veracity  of  one  addicted 
to  its  use.— State  v.  Robinson,  12  Wash.   491,   41  P.   884. 

A  physician  who  has  examined  a  party  may  testify  as 
an  expert  basing  his  opinion  on  the  result  of  the  exam- 
ination as  well  as  upon  subjective  symptoms  including  in- 
voluntary expressions  of  present  pain  and  suffering,  but 
statements  made  to  the  physician  by  such  party  and  such 
of  his  acts  as  were  within  control  of  his  will  power  should 
be  excluded. — Myhra  v.  Chicago,  M.  &  P.  S.  Ry.  Co.,  62 
Wash.   1,  112  P.  939. 

A  physician  who  examined  the  wound  on  deceased  after 
death  was  properly  allowed  to  state  how  far  deceased  could 
have  walked  after  receiving  the  wound. — State  v.  Drum- 
mond,  70  Wash.  260,  126  P.  541. 

Sundry  Matters. 
Arizona.     A    person    long    familiar    with    the    conduct    of 
mares  and  colts  is  competent  to  express  an  opinion  as  to 
whether  a  colt  belonged  to  a  certain  mare  which  it  had 
been  following. — Miller  v.  Territory,  9  Ariz.  123,  80  P.  321. 

From  experience  and  observation  derived  from  shoot- 
ing large  animals,  a  person  may  give  his  opinion  as  to 
whether  a  wound  upon  a  human  being  was  made  by  the 
entrance  or  exit  of  a  bullet. — Spence  v.  Territory,  13  Ariz. 
20,   108  P.   227. 

Arkansas.  A  witness  who  had  been  cashier  of  banks  for 
many  years  could  testify  as  to  the  custom  of  the  banking 
business  in  other  states  as  to  discounting  negotiable  paper, 
on  an  issue  whether  such  paper  was  purchased  in  due 
course  and  good  faith. — Holland  Banking  Co.  v.  Booth, 
(Ark.),   180  S.  W.  978. 

California.  Whether  a  crack  in  machinery  could  not  have 
been  discovered  by  the  exercise  of  ordinary  care  and  pre- 
caution, is  not  permissible  as  expert  testimony. — Pacheco 

v.  Judson  Mfg.  Co.,  113  Cal.  541,  5  P.  833. 


422  OPINIONS 

Where,  as  tending  to  show  unsoundness  of  mind,  evi- 
dence is  introduced  to  show  the  absurdity  of  some  of  the 
ideas  of  the  alleged  incompetent,  expert  evidence  may  be 
received  tending  to  show  that  such  ideas  are  not  chimeri- 
cal.—People  v.  Goldsworthy,  130  Cal.  600,  62  P.  1074. 

One  experienced  in  cultivating  an  orchard  may  testify 
as  to  the  sufficiency  of  water  for  its  irrigation. — Thayer 
v.  Tyler,  169  Cal.  671,  147  P.  979. 

An  expert  in  such  matters  may  testify  as  to  the  re- 
spective values  of  land  with  and  without  underground 
waters  supplying  springs  on  the  land. — De  Freitas  v.  Sui- 
sun,  170  Cal.  263,  149  P.  553. 

Kansas.  Farmers  who  reside  within  the  vicinity  of  a  par- 
ticular farm,  who  know  its  capabilities,  and  who  can  tes- 
tify that  they  know  its  value,  may.  give  their  opinions  in 
evidence  with  respect  to  its  value;  and  such  opinions  are 
competent  evidence,  although  such  farmers  may  not  know 
of  any  sale  of  any  farm  in  that  vicinity.— Kansas  City  & 
S.  W.  R.  Co.  v.  Ehret,  41  Kan.  22,  20  P.  538. 

On  an  issue  as  to  the  value  of  farm  land  taken  for  right- 
of-way,  farmers  living  in  the  neighborhood  having  knowl- 
edge of  the  property  for  years,  its  location  advantages, 
character  of  soil  and  its  market  value  as  compared  with 
nearby  lands,  may  testify  as  to  the  damages. — Chicago,  K. 
&  W.  R.  Co.  v.  Cosper,  42  Kan.  561,  22  P.  634. 

But  though  such  witnesses  reside  in  the  vicinity  and  are 
acquainted  with  the  property,  yet  cannot  testify  to  its  mar- 
ket value,  they  cannot  give  an  opinion  as  to  the  deprecia- 
tion in  value  by  the  taking  of  the  right-of-way. — Ottawa, 
O.  C.  &  C.  G.  R.  Co.  v.  Fisher,  42  Kan.  675,  22  P.  713. 

A  witness  may  identify  a  drug  or  compound  by  compari- 
son of  the  odor.— State  v.  Buck,  88  Kan.  114,  127  P.  631. 

Oklahoma.  What  range  a  bullet  will  take  after  coming 
in  contact  with,  or  entering  the  human  body,  is  not  a  prop- 
er subject  for  expert  evidence;  nor  is  the  position  of  the 
body  when  the  wound  was  received,  based  upon  the  range 
of  the  bullet  after  it  entered  the  body. — Price  v.  United 
States,  2  Okl.  Cr.  449,  101  P.  1036. 


OPINIONS  423 

Opinion  evidence  of  race  is  admissible. — Cole  v.  Dis- 
trict Board,   32  Okl.  692,   123  P.  426. 

Whether  or  not  one  was  guilty  of  negligence  in  the 
operation  of  complicated  machinery  may  be  testified  to 
by  an  expert.— Burk  v.  Hobart  M.  &  E.  Co.,  (Okl.),  150  P. 
458. 

Texas.  The  opinions  and  explanations  of  men  familiar 
with,  and  experts  in,  the  operating  and  handling  compli- 
cated machinery  are  admissible  as  to  whether  or  not  one 
was  guilty  of  negligence  in  the  operation  of  such  ma- 
chinery.— Gammel-Statesman  Pub.  Co.  v.  Monfort,  (Tex. 
Civ.  App.),  81  S.  W.   1029. 

Long  continued  familiarity  with  and  experience  in  the 
use  of  dynamite  as  an  explosive  will  qualify  a  witness  to 
testify  as  to  the  effect  an  explosion  would  have  upon 
a  human  being  near  the  scene  of  explosion. — Houston 
E.  &  W.  T.  Ry.  Co.  v.  Cavanaugh,  (Tex.  Civ.  App.),  173 
S.  W.  619. 

Texas.  Whether  horses  that  made  the  tracks  were  walk- 
ing or  running,  may  be  shown  by  a  witness  accustomed  to 
riding  horses  in  practically  every  way,  from  an  examina- 
tion of  the  tracks.— Taylor  v.  State,  (Tex.  Cr.  It.),  180  S. 
W.  242. 

Utah.  That  letters  were  written  on  the  same  typewriter 
may  be  shown  by  expert  testimony  from  comparison.  The 
machine  may  also  be  identified  by  the  writing. — State  v. 
Freshwater,   30  Utah  442,   85   P.   447. 

Hypothetical   Questions. 
Arizona.     There    must   be   evidence   tending   to   prove   the 
material  facts  assumed  in  a  hypothetical  question  before 
an  answer  thereto  may  be  permitted. — Mayhew  v.  Brislin, 
13  Ariz.  102,  108  P.  253. 

Arkansas.  A  hypothetical  question,  the  answer  to  which 
is  intended  to  discredit  the  opinion  of  another,  should  em- 
brace all  the  undisputed  facts  upon  which  such  opinion 
was  based.— Williams  v.  Fulkes,  103  Ark.  196,  146  S.  W. 
480. 

A  hypothetical  question  should  include  undisputed  facts 
or  circumstances  disclosed  by  the  adverse  party's  evidence 


424  OPINIONS 

bearing  upon  the  matter  in  issue. — Bell  v.  State,  (Ark.),  180 
S.  W.   186. 

Hypothetical  questions  must  fairly  reflect  the  evidence, 
otherwise  the  opinion  can  have  no  probative  force.  The 
hypothetical  case  must  embrace  undisputed  facts  that  are 
essential  to  the  issue.  All  facts  which  the  evidence  tends 
to  prove  may  be  assumed  as  proved.  The  opinion  may  be 
based  upon  the  whole  or  any  part  of  the  evidence,  and  upon 
facts  which  the  party  claims  the  evidence  shows. — Taylor 
v.  McClintock,  87  Ark.  243,  112  S.  W.  405;  Williams  v. 
Cantwell,  114  Ark.  542,  170  S.  W.  250;  Bell  v.  State, 
(Ark.),   180  S.  W.  186. 

Colorado.  A  hypothetical  question  must  be  based  upon 
the  hypothesis  of  the  truth  of  all  the  evidence,  or  on  a 
hypothesis  especially  framed  of  certain  facts  assumed  to 
have  been  proved. — Gottlieb  v.  Hartman,  3  Colo.  53. 

In  propounding  hypothetical  questions  to  experts,  coun- 
sel are  not  confined  to  facts  admitted  or  absolutely  proved, 
but  may  assume  for  the  purposes  of  the  question  any  state- 
ment of  facts  which  the  evidence  tends  to  establish. — 
Jordan  v.  People,  19  Colo.  417,  36  P.  218. 

A  hypothetical  question  assuming  facts  not  established 
by  evidence,  and  which  no  evidence  tends  to  establish, 
must  be  excluded.— Butler  v.  Phillips,  38  Colo.  378,  393, 
88  P.  480;  Burnham  v.  Grant,  24  Colo.  App.  131,  134  P.  254. 
Idaho.  A  hypothetical  question  must  be  based  on  facts 
admitted  or  established  by  the  evidence,  or  both. — McLean 
v.  City  of  Lewiston,  8  Idaho  472,  69  P.  478. 

On  cross-examination  of  an  expert  witness,  a  hypotheti- 
cal question,  if  based  on  some  evidence  in  the  case  which 
would  justify  it,  may  be  answered. — Trull  v.  Modern  Wood- 
men, 12  Idaho  318,  85  P.  1081. 

Kansas.  An  expert  cannot  give  his  opinion  when  the  facts 
are  controverted,  but  a  hypothetical  question  should  be 
put  to  him.— Tefft  v.  Wilcox,  6  Kan.  46. 

The  question  should  not  be  so  framed  as  to  permit  the 
witness  to  roam  through  the  evidence  for  himself,  and 
gather  the  facts  as  he  may  consider  them  to  be  proved,  and 


OPINIONS  425 

then  state  his  conclusions  concerning  them. — Western 
Union  Tel.  Co.  v.  Morris,  67  Kan.  410,  73  P.  108. 

Where  an  expert  opinion  has  been  based  upon  a  hypo- 
thetical question,  some  of  the  facts  therein  assumed  may 
be  omitted  from  a  second  hypothetical  question  in  cross- 
examination.— State  v.  Buck,  88  Kan.  114,  127  P.  631. 
Montana.  It  is  only  a  person  skilled  in  the  particular 
science,  art,  or  trade  concerning  which  the  investigation 
is  had  who  can  be  permitted  to  give  an  opinion  founded 
upon  facts  learned  from  other  sources  than  his  own  obser- 
vation. Such  person  may  hear  facts  detailed  by  other 
witnesses  and  express  an  opinion  thereon;  or  the  ques- 
tion may  be  put  to  him  in  hypothetical  form,  founded  upon 
facts  thus  detailed.— State  v.  Peel,  23  Mont.  358,  59  P.  169; 
Trogdon  v.  Hanson  Sheep  Co.,  49  Mont.  1,  139  P.  792. 

North  Dakota.  A  hypothetical  question  should  include  the 
essential  facts  disclosed  by  the  evidence. — Seckerson  v. 
Sinclair,  24  N.  D.  625,  140  N.  W.  239. 

Texas.  Counsel  have  the  right  to  embody  in  their  hypo- 
thetical questions  the  facts  which  in  their  judgment  the 
evidence  proves,  and  are  not  compelled  to  embrace  therein 
the  facts  that  the  opposing  litigant  contends  to  be  those 
established  by  the  evidence. — Order  of  United  Commercial 
Travelers  of  America  v.  Roth,  (Tex.  Civ.  App.),  159  S.  W. 
17«. 

Utah.  A  hypothetical  question  should  include  the  material 
facts  in  evidence,  and  should  not  assume  facts  which  have 
not  been  proved,  or  do  not,  in  truth,  exist. — Nichols  v. 
Oregon  Short  Line,  25  Utah  240,  70  P.  996. 

Facts  Forming  Basis  of  Opinion. 
California.  Where  a  witness  bases  his  opinion  entirely 
upon  incompetent  and  inadmissible  matters  or  shows  that 
such  matters  are  the  chief  elements  in  the  calculations, 
which  lead  him  to  such  conclusions,  it  should  be  rejected. 
(Opinion  of  value  of  land  for  reservoir  purposes  based 
upon  cost  of  proposed  water  works  and  probable  income 
and  profit  from  the  works.) — San  Diego  Land  &  Town  Co. 
v.  Neale.  88  Cal.  50.  25  P.  P77. 


426  OPINIONS 

Where  the  opinion  of  an  expert  is  asked  upon  facts  not 
detailed  in  the  question  itself,  but  the  witness  is  referred 
to  the  testimony  of  another  for  such  facts,  it  should  appear 
that  the  witness  had  heard  the  testimony. — Howland  v. 
Oakland,  etc.,  Ry.  Co.,  115  Cal.  487,  47  P.  255. 

Expert  opinions  cannot  be  based  upon  incompetent  evi- 
dence.— James'  Estate,  In  re,  124  Cal.  653,  57  P.  578. 
Colorado.  An  expert  is  not  permitted  to  form  his  opinion 
about  the  evidence,  and  thereon  base  his  statement.  An 
opinion  cannot  be  based  upon  the  reading  of  a  part  of  a 
stenographer's  notes  of  the  testimony  of  plaintiff. — Fair- 
banks, Morse  &  Co.  v.  Weeber,  15  Colo.  App.  268,  62  P.  368. 
Kansas.  An  opinion  as  to  the  truth  of  a  matter  cannot  be 
based  upon  the  hearing  of  the  testimony  of  a  witness  given 
upon  another  trial. — Wright  v.  Wright,  58  Kan.  525,  50 
P.  444. 

A  physician  testifying  as  an  expert,  should  not  be  al- 
lowed to  base  his  opinion  of  the  condition  of  the  patient 
to  any  extent  upon  the  statements  of  third  parties,  nor  on 
what  the  family  of  the  patient  may  have  said. — Chicago, 
R.  I.  &  O.  Ry.  Co.  v.  Sheldon,  6  Kan.  App.  347,  51  P.  808. 

An  expert  may  give  his  opinion  based  either  upon  facts 
testified  to  by  others,  or  upon  hypothetical  questions,  or,  if 
a  physician,  upon  an  examination,  but  a  physician  cannot 
testify  to  conclusions  arrived  at  from  the  history  of  the 
case  given  him  by  the  patient  or  others,  not  based  par- 
tially upon  what  he  has  been  told  of  the  case,  and  partially 
upon  information  obtained  by  an  examination.  A  physician 
may  testify  to  the  condition  of  the  patient  as  he  found 
him,  whether  suffering  from  pain,  and  to  utterances  or 
exclamations  of  pain,  and  he  may  also  give  the  patient's 
statement  as  to  the  location  of  the  pain  causing  such  ex- 
clamations.— Federal  Betterment  Co.  v.  Reeves,  73  Kan. 
107,  84  P.   560. 

It  was  not  error  to  reject  the  opinion  of  a  physician  as 
to  the  probability  of  plaintiff  being  ruptured  by  the  acci- 
dent, who  had  heard  the  testimony  of  plaintiff  as  to  the 
manner  of  his  alleged  injury,  but  who  had  not  examined 
him.— City  of  Ottawa  v.  Green,   72  Kan.  214,  83  P.   616. 


OPINIONS  427 

A  question  asking  for  an  opinion,  based  upon  a  given 
hypothesis,  or  upon  personal  knowledge  or  both,  is  on« 
that  a  properly  qualified  witness  may  answer. — State  v. 
Hatch,  83  Kan.  613,  112  P.  149;  State  v.  Buck,  88  Kan.  114, 
127  P.  631. 

Expert  testimony  may  be  based  on  the  testimony  of  an- 
other witness  whom  the  expert  heard  testify. — Mampe  v. 
Kunkel,  95  Kan.  602,  148  P.  741. 

Nebraska.  Where  it  affirmatively  appears  that  some  of 
the  facts  upon  which  a  witness  bases  his  opinion  are  un- 
known to  him,  it  is  not  error  to  reject  the  opinion. — Fitch 
v.  Martin,  84  Neb.  745,  122  N.  W.  50. 
North  Dakota.  One  who  gives  an  opinion  as  to  the  mental 
capacity  of  another  must  show  facts  which  are  sufficient 
upon  which  to  found  a  rational  basis  for  the  opinion. — 
State  v.  Barry,  11  N.  D.  428,  92  N.  W.  809;  Dowd  v.  Mc- 
Ginnity,  30  N.   D.   308,  152   N.  W.  524. 

A  medical  expert  cannot  base  his  opinion  upon  the  pa- 
tient's history  of  the  case. — Hintz  v.  Wagner,  25  N.  D.  110, 
140  N.  W.  729. 

Oregon.  A  surveyor's  opinion  as  to  the  result  of  a  sur- 
vey unsupported  by  details  of  the  survey,  both  as  to  data 
upon  which  it  was  based  and  the  manner  of  reaching  the 
result,  is  not  competent. — Gallagher  v.  Kelliher,  58  Or. 
557,   114  P.   943. 

An  expert  witness  may  hase  his  opinion  on  testimony 
which  he  heard  another  witness  give. — Latourette  v.  Miller, 
67  Or.  141,  135  P.  327. 

Utah.  An  expert  cannot  base  his  opinion  merely  upon 
testimony  heard  by  him,  when  there  is  a  conflict  in  such 
testimony,  yet,  when  the  facts  are  within  his  own  knowl- 
edge, and  related  by  him,  his  opinion  based  wholly  upon 
personal  examination  and  knowledge,  is  admissible  with- 
out having  facts  hypothetically  stated. — Wells  v.  Davis, 
22  Utah  322,  62  P.  3. 

Where  opinions  of  experts  are  admitted  they  must  be 
based  upon  something  more  tangible  than  mere  conjec- 
ture, regardless  of  the  character  of  the  witness. — Neesley 
v.  Southern  Pac.  Co.,  35  Utah  259,  99  P.  1067. 


428  OPINIONS 

Scope  of   Examination. 
California.     An  expert  witness  should  not  be  examined  as 
to  specific  facts  in  his  examination  in  chief. — De  Freitas 
v.  Suisun,  170  Cal.  263,  149  P.  553. 

Nebraska.  An  expert  witness  called  solely  for  the  purpose 
of  showing  the  nature  and  extent  of  an  injury  to  plaintiff 
at  the  time  it  occurred,  may  not  be  called  to  testify  as  to 
his  treatment  of  the  plaintiff  after  the  injury. — Svetkovic 
v.  Union  Pac.  R.  Co.,  (Neb.),  145  N.  W.  990. 
South  Dakota.  After  an  expert  has  expressed  his  opin- 
ion as  to  the  value  of  a  defective  piece  of  machinery  and 
stated  that  in  his  opinion  the  defect  could  be  repaired,  he 
may  be  asked  how  much  time  or  expense  it  would  take  to 
make  the  repairs. — Aultman  Co.  v.  Ferguson,  8  S.  D.  458, 
66  N.  W.  1081. 

Testing  Knowledge. 
Kansas.  Where  an  expert  expressed  an  opinion  that  the 
writing  submitted  to  him  was  genuine,  and  on  cross-exam- 
ination gave  his  opinion  that  other  writings  submitted  were 
also  genuine,  evidence  that  such  other  writings  were 
spurious  was  held  inadmissible. — Gaunt  v.  Harkness,  53 
Kan.  405,  36  P.  739;  Underwood  v.  Quantic,  85  Kan.  Ill, 
116  P.  361. 

Wyoming.  The  extent  of  the  cross-examination  of  an  ex- 
pert witness  with  reference  to  collateral  matters,  in  order 
to  test  his  knowledge,  is  within  the  discretion  of  the  court. 
—Hollywood  v.  State,  19  Wyo.  493,  120  P.  471. 

Preliminary  Question  of  Competency. 
Whether  the  witness  has  sufficient  qualifications  to  tes- 
tify as  an  expert  is  a  question  largely  in  the  discretion  of 
the  court.— Gila  Valley,  G.  &  N.  Ry.  Co.  v.  Lyon,  9  Ariz.  218, 
80  P.  337;  Ft.  Smith  &  Van  B.  B.  Dist.  v.  Scott,  103  Ark.  405, 
147  S.  W.  440;  Howland  v.  Oakland  Consol.  St.  Ry.  Co., 
110  Cal.  513,  42  P.  983;  Rimmer  v.  Wilson,  42  Colo.  180, 
93  P.  1110;  Carscallen  v.  Coeur  d'Alene  &  St.  J.  Trans.  Co., 
15  Idaho  444,  98  P.  622;  Broquet  v.  Tripp,  36  Kan.  700, 
14  P.  227;  Watson  v.  Colusa-Parrot  M.  &  S.  Co.,  31  Mont. 
513,  79  P.  14;  Meyers  &  Cox  v.  Western  Union  Tel.  Co., 
(Neb.),   153    N.  W.    558;     State    v.    Lewis,    20    Nev.    333, 


OPINIONS  429 

22  P.  241;  Lynch  v.  Grayson,  5  N.  M.  487,  25  P.  992;  White- 
head v.  Jefferson,  (Okl.),  151  P.  681;  Farmers'  &  T.  Nat, 
Bank  v.  Woodell,  38  Or.  294,  61  P.  837;  Hovey  v.  Sanders, 
(Tex.  Civ.  App.),  174  S.  W.  1025;  State  v.  Webb,  18  Utah 
441,  56  P.  159;  Czarecki  v.  Seattle  &  S.  F.  Ry.  Co.,  30 
Wash.  288,  70  P.  750. 


Article  50. 
facts  bearing  upon  opinions  of  experts. 

Facts,  not  otherwise  relevant,  are  deemed  to  be 
relevant  if  they  support  or  are  inconsistent  with 
the  opinions  of  experts,  when  such  opinions  are 
deemed  to  be  relevant. 

Illustrations. 

(a)  The  question  is,  whether  A  was  poisoned  by  a  certain 
poison. 

The  fact  that  other  persons,  who  were  poisoned  by  that 
poison,  exhibited  certain  symptoms  which  experts  affirm  or 
deny  to  be  the  symptoms  of  that  poison,  is  deemed  to  be  rele- 
vant.— 1 

(b)  The  question  is,  whether  an  obstruction  to  a  harbor 
is  caused  by  a  certain  bank.  An  expert  gives  his  opinion 
that   it   Is   not. 

The  fact  that  other  harbors  similarly  situated  In  other  re- 
spects, but  where  there  were  no  such  banks — 2 — began  to  be 
obstructed  at  about  the  same  time,  is  deemed  to  be  relevant. 


1  R.  v.  Palmer,  printed  trial,  p.  124,  &c.  In  this  case  (tried 
in  1856)  evidence  was  given  of  the  symptoms  attending  the 
deaths  of  Agnes  Senet,  poisoned  by  strychnine  in  1845;  Mrs. 
Serjeantson  Smith,  similarly  poisoned  in  1848,  and  Mrs.  Dove, 
murdered  by  the  same  poison  subsequently  to  the  death  of 
Cook,   for   whose   murder  Palmer  was   tried. 

2  Folkes   v.   Chadd,   3    Doug.   157. 


430  OPINIONS 

FACTS  BEARING  UPON  OPINIONS  OF  EXPERTS. 
In  General. 
Arkansas.  Where  a  witness  has  made  an  estimate  as  to 
the  market  value  of  real  estate,  such  valuation  may  be 
supported  by  evidence  of  its  advantageous  location  for 
certain  kinds  of  business  or  its  desirability  as  choice  resi- 
dence property.  Evidence  tending  to  rebut  any  facts  which 
might  appear  to  be  derogatory  to  the  estimated  valuation, 
is  admissible,  but  collateral  issues  should  not  be  allowed 
to  spring  up  and  multiply. — Junction  Ry.  v.  Woodruff,  49 
Ark.  381,  5  S.  W.  792. 

California.  Where  an  expert  has  given  his  opinion  that 
the  condition  of  a  person  might  have  been  the  result  of 
certain  acts  constituting  the  crime  charged,  the  exclusion 
of  evidence  tending  to  show  that  the  condition  of  such 
person  might  have  resulted  from  other  causes,  is  error. 
—People  v.  Knight,   (Cal.),  43  P.  6. 

Montana.  An  expert  may  base  his  opinion  upon  an  as- 
sumed state  of  facts.  It  may  be  based  upon  testimony  of 
another  which  the  expert  has  heard. — Trogdon  v.  Hanson 
Sheep  Co.,  49  Mont.  1,  139  P.  792. 

North  Dakota.  Where  an  expert  witness  has  given  his 
opinion  as  to  the  cause  of  the  physical  condition  of  a 
party,  it  is  reversible  error  to  exclude  evidence  tending 
to  show  that  the  condition  of  the  party  might  have  been 
due  to  other  causes. — State  v.  Apley,  25  N.  D.  298,  141 
N.  W.  740. 

Oregon.  Where  an  opinion  is  substantiated  by  a  scientific 
work,  such  authority  may  be  read  in  evidence  to  contra- 
dict the  opinion.— Scott  v.  Astoria  R.  Co.,  43  Or.  26,  72  P. 
594. 

Texas.  After  an  expert  witness  had  testified  that  cinders 
escaping  from  a  locomotive  would  fall  to  the  ground  with- 
in a  certain  distance,  evidence  that  cinders  had  been 
known  to  be  carried  farther,  is  admissible.- — Missouri,  K. 
&  T.  Ry.  Co.  v.  Patterson,  (Tex.  Civ.  App.),  164  S.  W.  442. 
An  opinion  given  by  a  medical  expert  relative  to  pains 
and  suffering  must  be  shown  to  have  been  founded  on 
evidence  in  the  case.- — Gulf,  C.  &  S.  P.  Ry.  Co.  v.  Loyd, 
(Tex.  Civ.  App.),   175  S.  W.  721. 


OPINIONS  431 

Upon  an  issue  as  to  the  value  of  cattle  at  a  certain  mar- 
ket at  a  given  time,  the  printed  reports  of  sales  of  such 
cattle  at  the  market  in  question,  during  such  time  and 
upon  which  an  expert  based  his  opinion  as  to  value,  may  be 
read  in  evidence. — Western  Union  Tel.  Co.  v.  Gorman  & 
W.,    (Tex.  Civ.  App.),  174  S.  W.  925. 

Utah.  Where  a  question  asked  an  expert  witness  is  based 
on  facts  in  evidence  the  form  of  which  is  open  to  criticism, 
it  is  not  prejudicial  error  to  permit  it  to  be  answered,  the 
subject  being  proper  for  expert  opinions. — Mangum  v. 
Bullion  Beck  &  C.  Min.  Co.,  15  Utah  534,  50  P.  834. 
Washington.  Where  an  expert  has  given  his  opinion  that 
the  condition  of  a  person  might  have  been  the  result  of 
certain  acts  constituting  the  crime  charged,  the  exclusion 
of  evidence  tending  to  show  that  the  condition  of  such  per- 
son might  have  resulted  from  other  causes,  is  error. — 
State  v.  Beaudin,  76  Wash.  306,  136  P.  137. 

Cross-Exa  mi  nation. 
California.  One  who  has  given  an  expert  opinion  as  to 
the  value  of  land,  may  properly  testify  on  cross-examina- 
tion to  matters  which  would  influence  him  from  the  stand- 
point of  a  contemplating  buyer  in  determining  the  value 
of  land  of  the  character  of  that  under  consideration. — 
Southern  Pac.  It.  Co.  v.  San  Francisco  Sav.  Union,  146 
Cal.  290,  79   P.  961. 

Montana.  After  a  witness  has  given  his  opinion  as  to 
the  sanity  of  a  person  he  may  be  asked  on  cross-examina- 
tion, Avhat  he  meant  by  insanity  and  unsoundness  of  mind. 
—Stat.'  \  Peel,  2:\  Mont.  358,  59  P.  169. 
Nebraska.  Where  an  expert  gives  an  opinion  as  to  the 
rental  value  of  the  property  in  question,  he  may  be  cross- 
mined  concerning  his  knowledge,  but  may  not  give 
his  opinion  of  rental  values  in  the  vicinity  of  such  prop- 
erty.— Raapke  &  Katz  Co.  v.  Schmoeller  &  M.  Piano  Cc 
82  Neb.  716,  118  N.  W.  652. 

Texas.  To  test  the  skill  and  knowledge  of  a  medical  ex- 
pert, after  he  has  stated  that  he  examined  a  person  and 
from  such  examination  was  of  the  opinion  that  he  was  in 
normal  condition,  he  may  be  asked  if  an  injury  might  not 


432  OPINIONS 

remain  unnoticed  for  some  time  and  then  develop  into 
serious  injury. — Houston  &  T.  C.  Ry.  Co.  v.  Fox,  (Tex. 
Civ.  App.),  156  S.  W.  922. 

Wyoming.  The  extent  of  cross-examination  with  reference 
to  collateral  matters,  in  order  to  test  the  knowledge  of  an 
expert  witness,  is  within  the  discretion  of  the  court.  An 
expert  may  be  recalled  to  contradict  opinions  of  experts 
in  behalf  of  the  adverse  party. — Hollywood  v.  State,  19 
Wyo.  493,  120  P.  471. 

Reading   Scientific   Works  on   Cross-Examination   or   in 
Contradiction. 

The  general  rule  that  books  upon  scientific  subjects  are 
not  admissible  in  evidence  except  after  an  expert  witness 
has  referred  to  a  particular  work  to  sustain  his  opinion 
it  may  then  be  used  to  contradict  him,  is  generally  rec- 
ognized, but  it  is  well  established  that  the  accuracy  of 
the  opinion  may  be  tested  on  cross-examination  by  read- 
ing extracts  from  standard  authorities  and  asking  the 
witness  whether  he  agrees  or  disagrees  with  them.  A 
distinction  must  be  made  between  the  cross-examination 
for  the  purpose  of  showing  his  lack  of  reading  and  train- 
ing, and  an  attempt  to  overcome  his  evidence,  or  to  sus- 
tain the  theory  of  the  party  conducting  the  cross-examina- 
tion by  reading  the  authorities  to  the  jury. — Gallagher  v. 
Market  St.  R.  Co.,  67  Cal.  13,  6  P.  869;  McFadden  v.  Rail- 
way Co.,  87  Cal.  469,  25  P.  681;  Fisher  v.  Southern  Pac.  R. 
Co.,  89  Cal.  399,  26  P.  294;  Douglas  v.  Berlin  D.  W.  &  L. 
Co.,  169  Cal.  28.  145  P.  535;  Denver  Tram.  Co.  v.  Gawley, 
23  Colo.  App.  332,  129  P.  258;  Osborn  v.  Carey,  28  Idaho 
89,  152  P.  473;  State  v.  Bowers,  97  Kan.  33,  154  P.  259; 
Hutchinson  v.  State.  19  Neb.  262,  27  N.  W.  113;  State  v. 
Moeller,  20  N.  D.  114,  126  N.  W.  568;  State  v.  Brunette.  28 
N.  D.  539,  150  N.  W.  271;  Kersten  v.  Great  Nor.  Ry.  Co., 
28  N.  D.  3,  147  N.  W.  787;  Beadle  v.  Paine,  46  Or.  421, 
SO  P.  903;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Farmer.  102  Tex.  235, 
115  S.  W.  260;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Dooley,  (Tex.  Civ. 
App.),  131  S.  W.  831;  Clukey  v.  Seattle  Elec.  Co.,  27  Wash. 
70,   67   P.  379. 

California.  Where  medical  treatises  have  been  referred 
to  by  an  expert,  to  sustain  his  expressed  opinion,  they  may 


OPINIONS  433 

be  used  to  contradict  or  discredit  such  opinion. — Gallagher 
v.  Market  St.  R.  Co.,  67  Cal.  13,  6  P.  869. 

Article  51. 
opinion  as  to  handwriting,  when  deemed  to  be  relevant. 

When  there  is  a  question  as  to  the  person  by 
whom  any  document  was  written  or  signed,  the 
opinion  of  any  person  acquainted  with  the  hand- 
writing of  the  supposed  writer  that  it  was  or  was 
not  written  or  signed  by  him,  is  deemed  to  be  a 
relevant  fact. 

A  person  is  deemed  to  be  acquainted  with  the 
handwriting  of  another  person  when  he  has  at 
any  time  seen  that  person  write,  or  when  he  has 
received  documents  purporting  to  be  written  by 
that  person  in  answer  to  documents  written  by 
himself  or  under  his  authority  and  addressed  to 
that  person,  or  when,  in  the  ordinary  course  of 
business,  documents  purporting  to  be  written  by 
that  person  have  been  habitually  submitted  to 
him.  (a) 

Illustration. 
The  question  is,  whether  a  given  letter  is  in  the  handwrit- 
ing 'if  A,  a  merchant  in  Calcutta. 

B    is   a    merchant    in    London,    who   has   written    letters   ad- 

■i ■<!    to   A   and   received  in  answer  letters  purporting  to  be 

written   by  him.     C  is  B's  clerk,  whose  duty  it  was  to  exam- 

Mul   till    I'.s  correspondence.     I">  is  B's  broker,  to  whom  B 

habitually   submitted   the   letter   purporting  to  !><•   written   by 

A  for  the  purpose  of  advising  with  him   thereon. 

The  opinions  of  B,  C  and  D  an  the  question  whether  the 
letter  is  in  the  handwriting  of  A  are  relevant,  though  neither 
B,  C  nor  D  ever  saw   A   write. — 1 

The  opinion  of  E,  who  saw  A  write  once  twenty  years  ago, 
is  also  relevant. — 2 


a  See  Illustration    [3   Wigmore   Ev.,    §    1991   et  seq.] 

1  Doe    v.    Suckermore,    5    A.    &    E.    705    (Coleridge,    J.);    730 
(Patteson,  J.);  739-740   (Denman,  C.  J.). 

2  R.  v.   Home  Tooke,  25  S.  T.   71-72. 


434  OPINIONS 

OPINION    AS  TO   HANDWRITING. 

Qualifications  of  Witness. 

Arkansas.  A  witness  who  has  read  a  letter  admitted  to 
have  been  written  by  an  individual  may  testify  that,  in  his 
opinion,  the  writing  submitted  to  him  was  written  by  the 
same  person.— Redd  v.  State,  65  Ark.  475,  47  S.  W.  119. 

One  engaged  in  the  mercantile  business,  and  who  had 
studied  penmanship  and  was  familiar  with  the  signature 
of  a  person,  was  competent  to  testify  as  to  its  genuineness 
by  comparison.— McNeil  v.  State,  117  Ark.  8,  173  S.  W.  826. 
California.  Where  a  witness  states  that  he  is  familiar 
with  an  individual's  handwriting;  that  he  is  of  the  opinion 
that  papers  submitted  were  written  by  such  person,  but 
that  witness  did  not  see  him  write  them  and  would  not 
swear  that  it  was  his  handwriting,  it  is  sufficient  to  admit 
such  papers  in  evidence  as  written  by  such  person. — Peo- 
ple v.  Bidleman,  104  Cal.  608,  38  P.  502. 
Colorado.  A  witness  who  has  had  reasonable  means  and 
opportunity  to  become  acquainted  with  the  signature  of 
an  individual,  may  give  his  opinion  as  to  its  genuineness. 
— Salazar  v.  Taylor,   18   Colo.   538,  33  P.  369. 

One  who  has  seen  an  individual  write  may  give  evidence 
as  to  the  genuineness  of  his  signature. — People  v.  Gordon, 
13  Colo.  App.  678,  110  P.  469. 

Oklahoma.  A  witness  testifying  to  the  genuineness  of 
handwriting  must  show  familiarity  with  the  handwriting 
of  the  person  in  question  before  he  can  testify  from  per- 
sonal knowledge. — Archer  v.  United  States,  9  Old.  569, 
60  P.  268. 

Oregon.  A  witness  may  testify  from  his  own  knowledge 
as  to  the  genuineness  of  handwriting  when  familiar  with 
with  it,  or  by  comparison  with  writing  admittedly  genu- 
ine, but  not  unless  admitted  to  be  genuine  by  the  adverse 
party,  and  such  testimony  is  competent  as  to  the  genuine- 
ness of  a  signature  by  mark. — State  v.  Tice,  30  Or.  457,  48 
P.  367. 

South  Dakota.  If  one  has  seen  a  person  write,  he  is  com- 
petent to  give  an  opinion  as  to  whether  or  not  the  sig- 


OPINIONS  435 

nature  purporting  to  be  his  is  in  fact  his  signature. — State 
v.  Hall,  16  S.  D.  6,  91  N.  W.  325. 

Texas.  Sheriff,  not  being  an  expert,  cannot  testify  by 
comparison  of  handwriting,  where  he  did  not  know  the 
genuine  handwriting  of  the  person. — Jordt  v.  State,  50 
Tex.  Cr.  R.  2,  95  S.  W.  514. 

A  witness  who  states  that  he  knows  the  handwriting  of 
a  party  in  general,  had  frequently  seen  him  write,  and 
had  made  a  careful  examination  of  his  purported  signa- 
ture, may  give  an  opinion  as  to  its  genuineness,  although 
the  signature  was  not  in  court. — Robertson  v.  Talmadge, 
(Tex.  Civ.  App.),  174  S.  W.  627. 

Utah.  A  witness  familiar  with  the  handwriting  of  another 
may  give  his  opinion  as  to  the  genuineness  of  a  writing  in 
question.— Tucker  v.  Kellogg,  8  Utah  11,  28  P.  870. 

One  who  never  saw  another  write  or  is  not  an  expert 
cannot  testify  to  the  genuineness  of  such  person's  hand- 
writing.—State  v.  McBride,  30  Utah  422,  85  P.  440. 

A  witness  who  has  seen  a  party  write  but  once  may 
testify  as  to  the  genuineness  of  such  person's  handwriting. 
—State  v.  Freshwater,  30  Utah  422,  85  P.  447. 
Washington.  A  witness  who  has  personal  knowledge  of 
the  handwriting  of  another  may  testify  as  to  his  belief  or 
his  opinion  as  to  the  genuineness  of  his  signature. — Poncin 
v.  Furth,  15  Wash.  201,  46  P.  241;  State  v.  Miller,  80  Wash. 
75,  141  P.  293;  O'Brien  v.  McKelvey,  59  Wash.  115,  109  P. 
337. 

Article  52. 
comparison  of  handwritings. 

Comparison  of  a  disputed  handwriting  with  any- 
writing  proved  to  the  satisfaction  of  the  judge 
to  be  genuine  is  permitted  to  be  made  by  wit- 
nesses, and  such  writings,  and  the  evidence  of 
witnesses  respecting  the  same,  may  be  submitted 
to  the  Court  and  jury  as  evidence  of  the  genuine- 


436  OPINIONS 

ness  or  otherwise  of  the  writing  in  dispute.  This 
paragraph  applies  to  all  courts  of  judicature,  crim- 
inal or  civil,  and  to  all  persons  having  by  law,  or 
by  consent  of  parties,  authority  to  hear,  receive 
and  examine  evidence,  (a) 

COMPARISON    BY    EXPERTS. 

In  many  jurisdictions  expert  comparison  of  handwrit- 
ings is  admissible  to  prove  the  genuineness  of  a  writing. 
(3  Wigmore  Ev.,  §  2008.) 

The  opinions  of  experts,  but  not  of  lay  witnesses,  are 
generally  admitted  to  show  the  genuineness  or  otherwise 
of  handwriting,  by  comparison  with  other  specimens,  the 
competency  of  which  specimens  to  serve  as  standards  of 
comparison  depending  upon  their  authenticity,  the  rules 
in  the  different,  or  even  in  the  same,  jurisdictions  not 
being  in  harmony,  and  usually  attempted  to  be  regulated  by 
statute.  (3  Wigmore  Ev.,  §  2004  et  seq.) 
Idaho:  B,ane  v.  Guinn,  7  Ida.  439,  63  P.  634  (only  such 
papers  as  are  admitted  in  evidence  in  the  case,  for  other 
purposes,  and  such  as  are  admitted  to  be  genuine.) 
Kansas:  Gilmore  v.  Swisher,  59  Kan.  176,  52  P.  426  (letters 
not  admitted  as  genuine  cannot  be  used  as  standard  of 
comparison). 

Montana:  Davis  v.  Fredericks,  3  Mont.  262  (witness  is 
incompetent  to  testify  whose  only  knowledge  of  handwrit- 
ing is  by  comparison  with  others  acknowledged  to  be  gen- 
uine). 

Oklahoma:  Archer  v.  United  States,  9  Okl.  569,  60  P.  268 
(the  writing  used  as  a  standard  must  be  proved  genuine 
by  direct  and  positive  evidence,  and  cannot  itself  be  proved 
by  comparison). 

Oregon:  State  v.  Tice,  30  Or.  457,  48  P.  367  (by  statute, 
writings  admitted  or  treated  as  genuine  by  the  party 
against  whom  the  evidence  is  offered  may  be  used  for 
comparison). 


a  17  &  18  Vict.,  c.  125,  s.  27;  28  Vict.,  c.  18,  s.  8.     [3  Wig- 
more Ev.,  §  1997.] 


I 


OPINIONS  437 

Texas:  Jester  v.  Steiner,  86  Tex.  415,  420,  25  S.  W.  411 
(signature  not  admitted  to  be  genuine,  nor  otherwise  sat- 
isfactorily proved,  cannot  be  used  as  standard). 
Utah:  Tucker  v.  Kellogg,  8  Utah  11,  28  P.  870  (checks 
admitted  to  contain  genuine  signatures). 
Washington:  Moore  v.  Palmer,  14  Wash.  134,  44  P.  142 
(bank  checks  whose  genuineness  was  in  no  way  disputed 
or  denied,  admissible  for  purpose  of  comparison  with 
alleged   forged   signature). 

Colorado.  An  expert  on  handwriting  may  give  his  opin- 
ion as  to  the  genuineness  of  crosses,  in  lieu  of  a  signature, 
alleged  to  have  been  made  by  one  who  was  unable  to  write 
his  name. — Ausmus  v.  People,  47  Colo.  167,  107  P.  204. 
Texas.  An  opinion  as  to  the  genuineness  of  a  signature 
based  upon  personal  knowledge  of  the  signer's  handwriting, 
cannot  be  discredited  by  submitting  several  signatures  of 
another  person,  with  whose  handwriting  witness  did  not 
profess  to  be  familiar,  and,  after  witness  has  given  his 
opinion  that  the  signatures  so  submitted  were  made  by 
the  same  person,  evidence  of  the  maker  of  such  signatures 
that  one  of  them  is  a  forgery,  is  inadmissible. — Cowboy 
State  Bank  &  T.  Co.  v.  Roy,  (Tex.  Civ.  App.),  174  S.  W. 
647. 

Utah.  Opinions  of  experts  as  to  the  genuineness  of  hand- 
writing are  admissible  when  founded  upon  comparison  with 
writing  admitted  to  be  genuine. — State  v.  Webb,  18  Utah 
441,  56  P.  159. 

Standard  of  Comparison. 
California.     An  opinion  as  to  the  genuineness  of  a  signa- 
ture cannot  be  based  upon  comparison  with  another  sig- 
nature  not   shown   to   be   genuine. — Spottiswood   v.    Weir, 
80  Cal.  448,  22  P.  289. 

When  the  genuineness  of  a  writing  is  established  it  may 
be  used  as  a  standard  of  comparison. — People  v.  Driggs, 
14  Cal.  App.  507,  112  P.  577. 

Kansas.  Writings  used  as  a  standard  for  comparison  must 
be  admittedly  genuine  or  proven  so.  This  rule  applies  to 
cross-examination  as  well  as  direct. — Ort  v.  Fowler,  31 
Kan.  478,  2  P.  580;  Holmberg  v.  Johnson,  45  Kan.  197,  25 
P.  575;  Gaunt  v.  Harkness,  53  Kan.  405,  36  P.  739. 


438  OPINIONS 

Oklahoma.  The  writing  used  as  a  standard  of  comparison 
must  be  admittedly  genuine  or  undoubtedly  proven  by 
direct  or  positive  evidence,  and  not  by  comparison. — 
Archer  v.  United  States,  9  Okl.  569,  60  P.  268. 
Oregon.  Writings  admitted  to  be  or  treated  as  genuine 
may  be  used  as  a  standard  for  comparison,  although  such 
writings  are  inadmissible  in  evidence  for  any  other  pur- 
pose.— Munkers  v.  Farmers'  Ins.  Co.,  30  Or.  211,  46  P.  850; 
State  v.  Branton,  49  Or.  86,  87  P.  535. 
South  Dakota.  A  signature  prepared  for  the  special  pur- 
pose of  comparison  is  inadmissible  as  a  standard  of  com- 
parison. The  writing  must  be  admittedly  genuine  or  shown 
to  be  so.— Greenwald  v.  Ford,  21  S.  D.  28,  109  N.  W.  516. 
Texas.  The  genuineness  of  disputed  handwriting  may  not 
be  determined  by  comparing  it  with  other  purported  hand- 
writing, unless  such  other  handwriting  is  admittedly  genu- 
ine, or  has  been  so  established  by  clear  and  undisputed 
proof. — Eborn  v.  Zimpelman,  47  Tex.  503;  Cowboy  State 
Bank  &  T.  Co.  v.  Roy,  (Tex.  Civ.  App.),  174  S.  W.  647. 

And  such  other  writing  may  not  be  proven  to  be  genu- 
ine merely  by  the  opinion  of  witnesses  derivable  from  their 
general  knowledge  of  the  handwriting  of  the  person  whose 
signature  it  purports  to  be. — Kennedy  v.  Upshaw,  64  Tex. 
420. 

The  standard  of  comparison  must  be  so  firmly  estab- 
lished as  genuine  as  to  admit  of  no  collateral  issue  to 
arise.— Hanley  v.  Gandy,  28  Tex.  211;  Smyth  v.  Caswell, 
67  Tex.  573,  4  S.  W.  851. 

A  signature  cannot  be  proved  by  comparison  when  the 
signature  itself  is  not  before  the  court. — Mugge  v.  Adams, 
76  Tex.  448,  13  S.  W.  330;  Robertson  v.  Talmadge,  (Tex. 
Civ.   App.),   174   S.   W.   627. 

Utah.  Handwriting  may  be  proved  by  comparison  with 
that  which  is  admitted  to  be  genuine. — Durnell  v.  Sowden, 
5  Utah  216,  14  P.  334;  Tucker  v.  Kellogg,  8  Utah  11,  38 
P.  870. 

The  standard  of  comparison  must  be  conclusively  shown 
to  be  genuine  before  it  can  be  used  for  such  purpose. — 
State  v.  McBride,  30  Utah  422,  85  P.  440. 


OPINIONS  439 

Washington.  Handwriting  admitted  or  proved  to  be  gen- 
uine may  be  used  as  a  standard  for  comparison  witb 
handwriting  claimed  to  be  spurious. — State  v.  Cottrell,  56 
Wash.  543,  106  P.  179;  O'Brien  v.  McKelvey,  59  Wash.  115, 
109  P.  337. 

Abticle  53. 
opinion  as  to  existence  of  mabriage,  when  relevant. 

When  there  is  a  question  whether  two  persons 
are  or  are  not  married,  the  facts  that  they  co- 
habited and  were  treated  by  others  as  man  and 
wife  are  deemed  to  be  relevant  facts,  and  to  raise 
a  presumption  that  they  were  lawfully  married, 
and  that  any  act  necessary  to  the  validity  of  any 
form  of  marriage  which  may  have  passed  be- 
tween them  was  done; (a)  but  such  facts  are  not 
sufficient  to  prove  a  marriage  in  a  prosecution  for 
bigamy  or  in  proceedings  for  a  divorce,  or  in  a 
petition  for  damages  against  an  adulterer,  (b) 

EXISTENCE   OF   MARRIAGE. 

There  is  a  strong  presumption  in  favor  of  the  validity 
of  a  marriage  where  the  parties  have  lived  and  cohabited 
together,  whether  the  marriage  was  regular  or  irregular, 
and  whatever  the  form  of  the  proofs. — Darling  v.  Kent. 
82  Ark.  76,  100  S.  W.  747;  McKibbon  v.  McKibbon.  139 
Oai.  lis.  73  P.  148;  Wilcox  v.  Wilcox,  171  Cal.  770.  155  P. 


a  [The  questions  treated  under  this  subject  are  not  prop- 
fi'ly  matters  <if  opinion.  See  1  Wigmore  Ev.,  §  268;  3  Id.,  § 
2083.] 

b  Morris  v  Miller,  4  Burr.  2057;  Birt  v.  Barlow,  1  Doug. 
170;  and  sec  Oatherwood  v.  Caslon,  13  M.  &  W.  261.  Compare 
It.  v.  Mainwaring,  Dear.  &  B.  132.  See,  too,  De  Thoren  v.  A 
G„  L.  R.  1  App.  Cas.  686;  Piers  v.  Piers,  2  H.  &  C.  331.  Some 
of  the  references  in  the  report  of  De  Thoren  v.  A.  G.  are  in- 
correct. This  article  was  not  expressed  strongly  enough  in 
the  former  editions. 


440  OPINIONS 

95;  Pittinger  v.  Pittinger,  28  Colo.  308,  64  P.  195;  Shepard 
v.  Carter,  86  Kan.  125,  119  P.  533;  In  re  Rash's  Estate,  21 
Mont.  170,  53  P.  312;  United  States  v.  De  Amador,  6  N.  M. 
173,  27  P.  488;  Haile  v.  Hale,  40  Okl.  101,  135  P.  1143; 
Chancey  v.  Whinnery,  (Okl.),  147  P.  1036;  Megginson  v. 
Megginson,  21  Or.  387,  28  P.  388;  Ollschlager's  Estate  v. 
Widmer,  55  Or.  145,  105  P.  717;  Nixon  v.  Wichita  L.  & 
C.  Co.,  84  Tex.  408,  19  S.  W.  560;  State  v.  Graham,  23  Utah 
278,  64  P.  557;  Summerville  v.  Summerville,  31  Wash.  411, 
72  P.  84. 

The  reputation  to  sustain  the  presumption  of  marriage 
must  be  general  and  uniform,  and  the  evidence  to  estab- 
lish such  a  marriage  should  be  clear,  consistent  and  con- 
vincing, especially  if  its  establishment  would  subject  either 
of  the  parties  to  a  charge  of  bigamy. — White  v.  White,  82 
Cal.  427,  23  P.  276;  Peery  v.  Peery,  27  Colo.  App.  533,  150 
P.  329;  In  re  Peterson's  Estate,  22  N.  D.  480,  134  N.  W. 
751;  Fender  v.  Segro,  41  Okl.  318,  137  P.  103;  Weidenhoft 
v.  Primm.  16  Wyo.  340,  94  P.  453. 

Arkansas.  The  deliberate  admission  of  a  former  marriage 
by  a  defendant  in  a  prosecution  for  bigamy,  coupled  with 
cohabitation  and  repute,  is  evidence  tending  to  prove 
actual  marriage,  upon  which  a  jury  may  convict. — Hol- 
brook  v.  State,  34  Ark.  511. 

Where  it  was  shown  that  the  parties  lived  and  cohabited 
together,  admitted  their  marriage  and  had  a  child  born  to 
them,  it  was  held  sufficient  to  prove  the  marriage  in  a 
prosecution  for  bigamy. — Le  Grande  v.  State,  88  Ark.  135, 
113  S.  W.  1028. 

California.  Cohabitation  and  repute  do  not  make  mar- 
riage, but  are  merely  items  of  evidence  from  which  it  may 
be  inferred  that  a  marriage  has  been  entered  into. — White 
v.  White,  82  Cal.  427,  23  P.  276. 

Without  deciding  that  in  a  prosecution  for  bigamy  the 
first  marriage  can  be  established  by  evidence  of  general 
reputation  alone,  yet  it  was  held  that  such  evidence  was 
admissible.— People  v.  Hartman,  130  Cal.  487,  62  P.  823. 
Colorado.  In  prosecutions  for  bigamy  and  actions  for 
criminal  conversation,  marriage  cannot  be  proved  by  cir- 


OPINIONS  441 

cumstances  such  as  cohabitation  and  holding  themselves 
out  as  husband  and  wife,  but  there  must  be  proof  of  an 
actual  marriage,  although  such  proof  is  not  limited  to  the 
official  record  thereof. — Stark  v.  Johnson,  43  Colo.  243,  95 
P.  930. 

Idaho.  Where  a  marriage  was  celebrated  with  due  for- 
mality, but  the  husband  had  at  that  time  a  wife  living 
who  died  soon  after,  and  the  parties  continued  to  live  and 
cohabit  together  for  many  years  thereafter,  a  legal  mar- 
riage will  be  presumed  to  have  been  celebrated  by  them 
after  the  death  of  the  first  wife.— Huff  v.  Huff,  20  Idaho  450. 
118  P.  1080. 

Kansas.  The  deliberate  admission  of  a  former  marriage 
by  a  defendant  in  a  prosecution  for  bigamy,  coupled  with 
cohabitation  and  repute,  is  evidence  tending  to  prove  actual 
marriage,  upon  which  a  jury  may  convict. — State  v.  Hughes, 
35  Kan.  626,  12  P.  28. 

Nebraska.  Evidence  of  a  common  law  marriage,  if  suffi- 
cient to  establish  the  relation,  will  sustain  an  action  for 
divorce  and  alimony. — Coad  v.  Coad,  87  Neb.  290,  127  N. 
W.   455. 

In  an  action  to  annul  a  marriage  on  the  growd  that  the 
defendant,  at  the  time  it  was  contracted,  was  the  com- 
mon law  wife  of  another,  and  from  the  evidence  in  sup- 
port of  that  contention  it  appeared  that  the  parties  agreed 
to  and  did  live  and  cohabit  together  as  husband  and  wife; 
admitted  that  relationship;  occupied  the  same  rooms  at 
hotels,  and  otherwise  conducted  themselves  in  such  a 
manner  as  to  give  rise  to  the  belief  that  they  were  hus- 
band and  wife,  the  court  held  that  a  common  law  marriage 
was'shown. — Reynoldson  v.  Reynoldson,  96  Neb.  270,  147 
N.  W.  844. 

North  Dakota.  Proof  of  cohabitation,  reputation,  or  other 
circumstances  from  which  marriage  may  be  inferred  do 
not  amount  to  evidence  of  an  actual  marriage  in  an  action 
for  damages  for  criminal  conversation,  but  where  both 
plaintiff  and  his  wife  testify  to  the  fact  of  marriage  and 
such  testimony  is  uncontradicted,  it  is  competent  and 
sufficient.— Vollmer  v.  Stregge,  27  N.  D.  579,  147  P.  797. 


442  OPINIONS 

Texas.  Where  it  appeared  that  the  parties  lived  and  co- 
habited together  for  several  years,  that  the  woman  bore 
children,  and  that  their  conduct  was  such  as  to  lead  the 
public  to  believe  they  were  married,  but  that  apparently 
they  regarded  the  relation  as  one  which  could  be  termin- 
ated at  will,  but  naturally,  to  avoid  prosecution,  permitted 
the  public  to  believe  they  were  husband  and  wife,  it  was 
held  that  no  common  law  marriage  was  proved. — Interna- 
tional &  G.  N.  Ry.  Co.  v.  Sneed,  (Tex.  Civ.  App.),  181  S. 
W.  402. 

Utah.  Proof  of  cohabitation  and  the  birth  of  a  child  does 
not  prove  a  marriage,  but  may  be  taken  into  consideration 
as  a  circumstance  tending  to  show  the  guilt  of  one  charged 
with  polygamy/ — United  States  v.  Harris,  5  Utah  621,  19 
P.  197. 

A  defendant  in  a  prosecution  for  unlawful  cohabitation 
can  only  be  convicted  upon  proof  of  affirmative  acts  upon 
his  part  from  which  the  jury  may  infer  guilt,  but  proof  of 
holding  out  or  other  relations,  is  admissible. — State  v. 
Graham,  23  Utah  278,  64  P.  557. 

Washington.  Proof  of  continual  cohabitation  and  a  con- 
tinual assertion  that  marriage  exists,  together  with  proof 
of  conduct  consistent  with  marriage  raises  the  presump- 
tion, even  where  common  law  marriages  are  not  held  to 
be  legal,  that  a  ceremonial  or  legal  marriage  has  preceded 
the  acts  mentioned.— Shank  v.  Wilson,  33  Wash.  612,  74 
P.  812;   Potts  v.  Potts,  81  Wash.  27,  142  P.  448. 

Article  54. 
grounds  of  opinion,  when  deemed  to  be  relevant. 

Whenever  the  opinion  of  any  living  person  is 
deemed  to  be  relevant,  the  grounds  on  which  such 
opinion  is  based  are  also  deemed  to  be  relevant. 

Illustration. 
An  expert  may  given  an  account  of  experiments  performed 
by  him  for  the  purpose  of  forming  his  opinion. 


OPINIONS  443 

NOTE   XXIV. 

(To   Chapter  V.) 

On  evidence  of  opinions,  see  [1  Wigmore  Ev.,  §  562];  1  Ph. 
Ev.  520-528;  T.  E.  ss.  1273-1281;  Best,  ss.  511-517;  R.  N.  P. 
193-194.  The  leading  case  on  the  subject  is  Doe  v.  Tatham,  7 
A.  &  E.  313;  and  4  Bing.  N.  C.  489,  referred  to  above  in  Note 
IX.  Baron  Parke,  in  the  extracts  there  given,  treats  an  ex- 
pression of  opinion  as  hearsay,  that  is,  as  a  statement  affirm- 
ing the  truth  of  the  subject  matter  of  the  opinion. 

GROUNDS    FOR    EXPERT   OPINION. 

California.  Where  an  expert  witness  has  expressed  his 
opinion  of  the  value  of  land,  the  grounds  upon  which  his 
estimate  of  value  is  based,  are  admissible. — Montgomery 
v.  Sayre,  100  Cal.  182,  34  P.  646;  San  Joaquin  Lumber  Co. 
v.  Welton,  115  Cal.  203,  46  P.  1057. 

After  an  expert  witness  bas  expressed  his  opinion  as  to 
the  sanity  of  a  patient,  he  may  be  cross-examined  as  to 
his  qualifications  as  an  alienist,  that  is  to  say,  tbe  facts 
and  circumstances  upon  which  the  judgment  was  exer- 
cised and  the  conclusion  reached. — In  re  Mullin's  Estate, 
110  Cal.  252,  42  P.  645. 

As  bearing  upon  the  opinion  as  to  the  value  of  land, 
evidence  is  admissible  of  the  uses  to  which,  in  the  opinion 
of  the  witness,  the  land  could  be  put,  and  the  estimated 
profits  from  such  uses. — Southern  Pac.  R.  Co.  v.  San 
Francisco  Sav.  Union,  146  Cal.  290,  79  P.  961. 
Colorado.  Where  a  witness  gives  an  opinion  of  the  rea- 
sonable value  of  work  done  and  materials  furnished,  he 
may  be  cross-examined  as  to  his  reasons  for  his  opinion, 
i.  e.,  -how  much  labor  involved  and  how  much  and  the  value 
of  the  material  used. — Board  of  County  Com'rs  v.  Tully, 
17  Colo.  App.  113,  67  P.  346. 

Idaho.  An  expert  who  has  given  his  opinion  as  to  the 
value  of  property  may  be  cross-examined  as  to  his  means 
of  knowledge  and  reasons  which  lead  him  to  make  his 
estimate. — Idaho-Western  Ry.  Co.  v.  Columbia  Conference, 
etc.,  20  Idaho  568,  119  P.  60. 

Kansas.  Where  a  witness  gives  an  opinion  he  may  be 
cross-examined    in    full    respecting    his    reasons    for    such 


444  OPINIONS 

opinion. — Missouri,  K.  &  T.  Ry.  Co.  v.  Haines,  10  Kan. 
439;  Central  Branch  U.  P.  Ry.  Co.  v.  Andrews,  30  Kan. 
590,  2  P.  677. 

Montana.  To  sustain  an  opinion  as  to  the  value  of  land, 
evidence  as  to  the  purposes  to  which  it  can  be  advantag- 
eously put  is  competent.— Sweeney  v.  Montana  Cent.  Ry. 
Co.,  25   Mont.   543,   65  P.   912. 

A  non-expert  who  has  expressed  an  opinion  as  to  a 
person's  sanity,  may  be  required  on  cross-examination  to 
state  his  reasons.— State  v.  Penna,  35  Mont.  535,  90  P.  787. 
Nebraska.  Where  a  witness  gives  an  opinion  he  may  be 
cross-examined  in  full  respecting  his  reasons  for  such 
opinion.— Markel  v.  Moudy,  13  Neb.  323,  14  N.  W.  409. 

Where  an  expert  opinion  as  to  the  value  of  land  is  based, 
in  part,  upon  witness's  information  as  to  prices  obtained 
upon  sales  of  other  specifically  described  property  in  the 
neighborhood,  it  is  error  to  exclude  evidence  of  what  the 
prices  obtained  at  such  sales  actually  were. — Union  Pac. 
R.  Co.  v.  Stanwood,  71  Neb.  15,  91  N.  W.  191. 
North  Dakota.  Facts  upon  which  the  conclusion  of  a  wit- 
ness is  based  may  be  brought  out  either  on  direct  or  cross- 
examination.— Olson  v.  O'Connor,  9  N.  D.  504,  84  N.  W.  359. 
Oregon.  In  the  instant  case  it  was  held  not  error  to  per- 
mit an  expert  witness  to  name  authors  whose  scientific 
works  coincided  with  his  views. — Scott  v.  Astoria  R.  Co., 
43   Or.  26,  72  P.  594. 

While  the  value  of  real  estate  cannot  be  shown  by  prov- 
ing the  value  of  the  several  constituent  elements  of  value 
and  then  adding  them  together,  taking  the  aggregate 
amount  as  the  value  of  the  whole,  yet  a  witness  may  base 
his  opinion  by  taking  into  consideration  everything  which 
goes  to  make  up  the  value,  but  must  confine  his  testimony 
to  the  market  value  as  a  whole  and  not  to  its  several  parts. 
— Neppach  v.  Oregon  &  C.  R.  Co.,  46  Or.  374,  80  P.  482. 
Texas.  Where  a  witness  gives  an  opinion  he  may  be  cross- 
examined  in  full  respecting  his  reasons  for  such  opinion. 
—Missouri,  K.  &  T.  Ry.  Co.  v.  Rich,  51  Tex.  Civ.  App.  312, 
112  S.  W.  114;  Pecos  &  N.  T.  Ry.  Co.  v.  Porter,  (Tex.  Civ. 
App.),   156  S.  W.  267. 


OPINIONS  445 

Where  witnesses  have  testified  to  defendant's  good 
reputation  for  morality,  on  cross-examination  they  may 
be  asked  as  to  having  heard  certain  reports  of  him 
as  to  his  immorality  and  whether  they  took  such  reports 
into  consideration  in  arriving  at  his  general  reputation. 
— Duhig  v.  State,  (Tex.  Cr.  R.),  180  S.  W.  252. 
Washington.  What  an  expert  witness  "takes  into  con- 
sideration" in  forming  his  opinion  is  admissible  in  evi- 
dence.—Chicago,  M.  &  P.  S.  Ry.  Co.  v.  True,  62  Wash.  646, 
114  P.  515. 


446  CHARACTER 

CHAPTER  VI.* 

CHARACTER,  WHEN  DEEMED  TO  BE  RELEVANT  AND 
WHEN  NOT. 

Article  55. 
character  generally  irrelevant. 

The  fact  that  a  person  is  of  a  particular  char- 
acter is  deemed  to  be  irrelevant  to  any  inquiry 
respecting  his  conduct,  except  in  the  cases  men- 
tioned in  this  chapter,  (a) 

CHARACTER  IN  CIVIL  ACTIONS. 
In  General. 
In   civil   actions,   even   in   cases   arising   through   fraud, 
violence  or  other  criminal  conduct,  evidence  of  the  char- 
acter of  the  parties  is  generally  inadmissible: 
Arkansas:     Powers   v.   Armstrong,   62  Ark.   267,   35   S.  W. 
228   (replevin  for  goods  seized  under  attachment  as  those 
of  another;    plaintiff,  accused  of  acquiring  title  by  fraud 
against  his  vendor's  creditors,  may  not  show  his  general 
good   character). 

California:  Anthony  v.  Grand,  101  Cal.  235,  35  P.  859 
(assault;  defendant's  reputation  for  being  peaceable  in- 
admissible, where  evidence  showed  he  violently  assaulted 
plaintiff). 

Kansas:  Simpson  v.  Westenberger,  28  Kan.  756  (replevin; 
plaintiff  claiming  he  had  title  under  a  mortgage,  assailed 
as  fraudulent  against  creditors,  may  not  show  good  char- 
acter);  Lowrey  v.  Missouri,  K.  &  T.  R.  Co.,  90  Kan.  180, 
133  P.  719  (assault  by  conductor;  plaintiff's  prior  assault 
on  employes  of  another  railroad  inadmissible,  it  not  being 
shown  that  the  conductor  knew  of  it). 

1   p 

a    (1   Wigrnore  Ev.,   §    52   et   seq.) 


*  See  Note  at  end  of  Chapter. 


CHARACTER  447 

Nebraska:  Stoppert  v.  Nierhle,  45  Neb.  105,  63  N.  W. 
382  (paternity  of  bastard;  previous  reputation  of  defend- 
ant for  chastity  and  virtue,  inadmissible) ;  Barr  v.  Post, 
56  Neb.  698,  77  N.  W.  121  (assault  and  battery;  that  de- 
fendant had  never  used  profane  language,  inadmissible). 
North  Dakota:  State  v.  Brunette,  28  N.  D.  539,  150  N.  W. 
271  (bastardy,  practice  as  in  civil  actions;  reputation  of 
defendant  for  chastity,  inadmissible). 

Oklahoma:  Great  Western  Life  Ins.  Co.  v.  Sparks,  38 
Okl.  395,  132  P.  1092  (action  on  life  policy,  defense  of  false 
answers  in  application;  reputation  for  truth  and  honesty, 
inadmissible). 

Oregon:  Mcintosh  v.  McNair,  63  Or.  57,  126  P.  9  (agreed 
price  for  capital  stock  in  dispute;  that  plaintiff  would 
make  promises  to  pay  his  debts  and  fail  to  keep  them, 
inadmissible) ;  Munkers  v.  Farmers'  &  Merchants'  Ins.  Co., 
30  Or.  211,  46  P.  850  (action  on  policy;  defense,  setting 
fire;  general  good  character  of  insured,  inadmissible). 
Texas:  Houston  &  T.  C.  Ry.  Co.  v.  Bell,  (Tex.  Civ.  App.), 
73  S.  W.  56  (assault  by  employe;  particular  acts  of  plain- 
tiff, showing  violence  and  turbulence,  inadmissible);  Hurst 
v.  Benson,  (Tex.  Civ.  App.),  71  S.  W.  417  (action  for  rent, 
tenant  reconvening  for  damages  through  levy  of  distress 
warrant;  that  landlord's  reputation  for  honesty  and  fair 
dealing  was  bad,  inadmissible) ;  Houston  &  T.  C.  R.  Co. 
v.  Swancey,  (Tex.  Civ.  App.),  128  S.  W.  677  (injuries  to 
passenger;  that  he  had  been  a  minister  and  had  seduced 
a  girl  of  his  congregation,  inadmissible) ;  Houston  Elec. 
Co.  v.  Jones,  (Tex.  Civ.  App.),  129  S.  W.  863  (personal 
injuries;  testimony  in  behalf  of  plaintiff  that  his  char- 
acter was  good,  inadmissible);  Boiders  v.  Dooley,  (Tex. 
Civ.  App.),  154  S.  VV.  614  (that  a  landlord  was  close  and 
thrifty,  inadmissible  to  contradict  testimony  that  defend- 
ant was  behind  in  his  rent) ;  Wilmot  v.  Fore,  (Tex.  Civ. 
App.),  163  S.  W.  1014  (reputation  for  honesty  and  fair 
dealing  inadmissible,  there  having  been  no  effort  to  im- 
peach). 

Washington:  Poler  v.  Poler,  32  Wash.  400,  73  P.  372  (di- 
vorce; defendant's  general  reputation  not  being  questioned. 


448  CHARACTER 

his  reputation  as  a  law-abiding,  moral  man,  inadmissible) ; 
Kangley  v.  Rogers,  85  Wash.  250,  147  P.  898  (action  against 
notary  for  false  certificate;  that  he  was  ordinarily  care- 
ful in  taking  acknowledgments,  inadmissible). 

It  has  been  held  in  several  cases  that  in  civil  actions, 
where  the  character  of  a  party  or  another  through  whom 
rights  of  the  party  are  affected  is  assailed  by  the  defense 
or  claim  interposed,  evidence  of  his  good  character  is  ad- 
missible : 

Kansas:  Allison  v.  McClun,  40  Kan.  525,  20  P.  125  (action 
against  guardian  of  insane  person,  the  latter  being  charged 
with  converting  proceeds  of  notes  to  his  own  use;  evidence 
as  to  his  character  admissible). 

Texas:  Fire  Ass'n  of  Philadelphia  v.  Jones,  (Tex.  Civ. 
App.),  40  S.  W.  44  (action  on  insurance  policy,  plaintiffs 
being  charged  with  wilful  misrepresentations  and  with 
causing  their  property  to  be  burned;  general  reputation 
for  truth,  honesty  and  fair  dealing,  admissible) ;  Houston 
Elec.  Co.  v.  Paroux,  59  Tex.  Civ.  App.  232,  125  S.  W.  922 
(damages  for  personal  injuries  by  passenger,  causing 
hernia,  a  defense  being  that  plaintiff  was  fraudulently  at- 
tempting to  mulct  defendant  in  damages  for  a  pre-exist- 
ing hernia;  reputation  for  truth  and  veracity,  honesty  and 
fair  dealing,  admissible) ;  Cudlipp  v.  C.  R.  Cummings  Ex- 
port Co.,  (Tex.  Civ.  App.),  149  S.  W.  444  (action  for  bal- 
ance on  logs  scaled  by  defendant's  scalers,  plaintiff  alleg- 
ing that  the  persons  who  did  the  scaling  and  classifying 
practiced  fraud;  general  reputation  of  the  scalers  for  hon- 
esty, admissible). 

Washington:  Rasmusson  v.  North  Coast  Fire  Ins.  Co.,  83 
Wash.  569,  145  P.  610  (action  on  fire  insurance  policy  by 
deceased,  who  died  before  trial,  a  defense  being  false 
swearing  by  deceased  as  to  losses  and  values;  his  reputa- 
tion for  truth,  veracity  and  honesty,  admissible). 
California.  In  civil  actions  evidence  of  good  character  is 
irrelevant  except  in  certain  cases,  viz.,  chastity,  libel,  cer- 
tain kinds  of  fraud;  but  not  assault  and  battery. — Vance 
v.  Richardson,  110  Cal.  414,  42  P.  910. 
Kansas.  Evidence  of  good  character  and  reputation  for 
honesty   and   fair   dealing   is   inadmissible   in   favor   of  a 


CHARACTER  449 

mortgagee,  when  the  question  is  as  to  fraud  against  cred- 
itors of  mortgagor. — Simpson  v.  Westenberger,  28  Kan. 
756. 

Where  character  in  issue,  question  should  be  restricted 
to  general  reputation.— Spain  v.  Rakestraw,  79  Kan.  758, 
101  P.  466. 

Texas.  Evidence  of  the  character  or  reputation  of  the 
parties  is  not  relevant  in  civil  cases  unless  the  action  is 
such  that  general  character  is  involved. — Timmony  v. 
Burns,   (Tex.  Civ.  App.),  42  S.  W.  133. 

In  an  action  for  trespass  to  try  title,  testimony  as 
to  character  or  reputation  of  a  party  is  not  relevant,  al- 
though he  is  a  stranger  in  the  county. — Timmony  v.  Burns, 
(Tex.  Civ.  App.),  42  S.  W.   133. 

Character  As  An  Issue  In  Case. 
In  actions  for  damages  for  assault  and  battery,  malicious 
prosecution,  libel,  and  breach  of  marriage  promise,  char- 
acter evidence  is  relevant  under  some  circumstances: 
Arkansas:     Taylor  v.  Gumpert,  96  Ark.  354,  131  S.  W.  968; 
Cooper  v.  Demby,  (Ark.),  183  S.  W.  185. 
California:     Anthony   v.    Grand,    101   Cal.    235,    35    P.    859; 
Hearne  v.  De  Young,  132  Cal.  357,  64  P.  576;   Edwards  v. 
San  Jose   P.   &   P.   Co.,   99   Cal.   431,   34   P.   128;    Davis   v. 
Hearst,  160  Cal.  143,   116  P.   530. 

Colorado:     Lord  v.  Guyot,  30  Colo.  222,  79  P.  683;    Fleet- 
ford  v.  Barnett,  11  Colo.  App.  77,  52  P.  923. 
Kansas:     State  v.  Johnson,  40  Kan.  266,  19  P.  749;  Spain  v. 
Rakestraw,  79  Kan.  758,  101  P.  466. 

Montana:  Martin  v.  Corscadden,  34  Mont.  308,  86  P.  33. 
Nebraska:  Golder  v.  Lund,  50  Neb.  867,  70  N.  W.  379; 
Bank  v.  Richmon,  64  Neb.  Ill,  89  N.  W.  627;  Trousil  v. 
Bayer,  85  Neb.  431,  123  N.  W.  445. 

Oklahoma:     Vorhees   v.   Toney,    32    Okl.    570,    122   P.    552; 
Breckenridge  v.  Drummond,   (Okl.),  155  P.  555. 
South  Dakota:     Christensen  v.  Holm,  33  S.  D.  174,  144  N. 
W.  919. 

Texas:  San  Antonio  &  A.  P.  Ry.  Co.  v.  Griffin,  20  Tex. 
Civ.  App.  91,  48  S.  W.  542;  King  v.  Sassaman,  (Tex.  Civ. 
App.),  64  S.  W.  937;  Clark  v.  Reese,  26  Tex.  Civ.  App.  619, 


450  CHARACTER 

64  S.  W.  783;    Burkhiser  v.  Lyons,    (Tex.   Civ.  App.),   167 

S.  W.  244. 

Utah:     Fensterniaker  v.   Tribune   Pub.   Co.,   12  Utah   439, 

43  P.  112. 

Washington:     Hall  v.  Elgin  Dairy  Co.,  15  Wash.  542,  46  P. 

1049. 

In  actions  for  seduction,  actual  personal  chastity  is  an 
element.— Walton  v.  State,  71  Ark.  398,  75  S.  W.  1;  Peo- 
ple v.  Kahoe,  123  Cal.  224,  55  P.  911. 
South  Dakota.  Civil  action  for  assault  and  battery.  The 
quarrelsome  nature  of  plaintiff  is  not  proper  cross-exam- 
ination on  plaintiff's  case. — Christensen  v.  Holm,  33  S.  D. 
174,  144  N.  W.  919. 

Malicious  Prosecution. 
Montana.  The  bad  reputation  of  plaintiff  is  admissible  on 
the  question  of  want  of  probable  cause  and  in  mitigation 
of  damages.— Martin  v.  Corscadden,  34  Mont.  308,  86  P.  33. 
Nebraska.  Plaintiff  may  show  previous  good  reputation, 
known  or  probably  known  to  defendant,  as  bearing  on  the 
question  of  probable  cause. — Bank  of  Miller  v.  Richmon, 
64  Neb.  Ill,  89  N.  W.  627. 

Oregon.  Defendant  may  rebut  inference  of  want  of  prob- 
able cause  shown  by  plaintiff's  evidence  of  good  character 
as  to  honesty  and  integrity,  by  evidence  of  his  bad  reputa- 
tion.—Smith  v.  McDuffee,  72  Or.  276,  143  P.  929. 
South  Dakota.  Plaintiff's  good  reputation  is  admissible  as 
bearing  on  want  of  probable  cause,  to  show  that  defendant 
should  have  known  it. — Roshay  v.  Hessenius,  36  S.  D.  163, 
153  N.  W.  936. 

Defamation  of  Character. 
Oregon.     Action  for  libel.    Error  to  admit  evidence  of  good 
character  of  plaintiff  in  absence  of  attack  thereon. — Cooper 
v.  Phipps,  24  Or.  357,  33  P.  985. 

Texas.  Plaintiff  charged  with  want  of  chastity,  suing  for 
slander,  may  prove  good  reputation  for  chastity,  as  that 
matter  is  directly  in  issue. — King  v.  Sassaman,  (Tex.  Civ. 
App.),   64   S.   W.   937. 

Washington.  Specific  instances  of  misconduct,  in  con- 
verting money,  does  not  justify  plaintiff  in  giving  evidence 


CHARACTER  461 

of  his  own  good  reputation. — Hall  v.  Elgin  Dairy  Co.,  15 
Wash.  542,  46  P.  1049. 

Negligent  Acts. 

Other  acts  of  negligence  are  inadmissible  to  show  negli- 
gence on  a  particular  occasion: 

Arkansas:  Little  R.  &  M.  R.  Co.  v.  Harrell,  58  Ark.  454, 
24  S.  W.  833  (death  by  collision  of  a  street  car,  on  which 
deceased  was  a  passenger,  with  a  railroad  train;  that  the 
driver  of  the  car  was  negligent  on  other  occasions  is  inad- 
missible). 

California:  Pacheco  v.  Judson  Mfg.  Co.,  113  Cal.  541,  45 
P.  833  (injury  by  breaking  of  shears;  that  similar  shears 
had  broken  from  faulty  construction,  inadmissible) ;  How- 
land  v.  Oakland  Consol.  St.  Ry.  Co.,  115  Cal.  487,  47  P. 
255  (damages  for  injuries;  fact  that  plaintiff  was  nervous 
from  another  accident,  inadmissible). 

Kansas:  Southern  Kansas  R.  Co.  v.  Robbins,  43  Kan.  145 
23  P.  113  (brakeman  injured  in  climbing  car;  former  neg- 
ligent acts  inadmissible  to  show  contributory  negligence). 
Texas:  Missouri,  K.  &  T.  R.  Co.  v.  Johnson,  (Tex.  Civ. 
App.),  48  S.  W.  568  (particular  acts  irrelevant  to  show  con- 
tributory negligence). 

Washington:  Christensen  v.  Union  Trunk  Line,  6  Wash. 
75,  32  P.  1018  (injury  from  collision  with  street  car;  that 
n^otorman  had  run  his  car  at  high  rate  of  speed  on  other 
occasions  irrelevant). 

Evidence  of  character  offered  for  the  purpose  of  rais- 
ing an  inference  of  conduct  in  actions  charging  negligent 
acts  is  inadmissible. — Carter  v.  Seattle,  19  Wash.  597,  53 
P.  1102;   Kangley  v.  Rogers,  85  Wash.  250,  147  P.  898. 

Specific   Instances  of   Misconduct. 

California.  Slander  by  charging  drunkenness.  Evidence 
of  drunkenness  at  other  times  than  those  mentioned  in  the 
plea  of  justification,  inadmissible. — Swan  v.  Thompson,  124 
Cal.  193,  56  P.  878. 

Kansas.  Specific  acts  of  misconduct  are  not  ordinarily 
admissible  upon  an  issue  of  character  which  arises  col- 


452  CHARACTER 

laterally.— Lowrey  v.  Missouri,  K.  &  T.  Ry.  Co.,  90  Kan. 
180,  133  P.  719. 

Nebraska.  Proof  of  a  quarrelsome  and  contentious  dis- 
position must  be  as  to  general  reputation  and  not  as  to 
specific  acts.— Golder  v.  Lund,  50  Neb.  867,  70  N.  W.  379; 
Trousil  v.  Bayer,  85  Neb.  431,  123  N.  W.  445. 
Texas.  Assault  and  battery  by  employe.  Particular  acts 
of  plaintiff  showing  violence  and  turbulence,  inadmissible. 
—Houston  &  T.  C.  Ry.  Co.  v.  Bell,  97  Tex.  71,  75  S.  W.  484. 
Evidence  of  character  confined  to  general  reputation, 
and  is  not  shown  by  personal  opinion  of  a  witness. — 
McCormick  v.  Schtrenck,  (Tex.  Civ.  App.),  130  S.  W.  720. 
Utah.  Custody  of  child  in  question.  Reputation  of  parent 
not  provable  by  specific  instances  of  misconduct.— Harri- 
son v.  Harker,  44  Utah  541,   142  P.  716. 

Article  56. 
evidence  of  character  in  criminal  cases. 

In  criminal  proceedings,  the  fact  that  the  per- 
son accused  has  a  good  character,  is  deemed  to  be 
relevant ;  but  the  fact  that  he  has  a  bad  character 
is  deemed  to  be  irrelevant,  unless  it  is  itself  a 
fact  in  issue,  or  unless  evidence  has  been  given 
that  he  has  a  good  character,  in  which  case  evi- 
dence that  he  has  a  bad  character  is  admissible, 
(a) 

In  this  article  the  word  "character"  means  rep- 
utation as  distinguished  from  disposition,  and  evi- 
dence may  be  given  only  of  general  reputation 
and  not  of  particular  acts  by  which  reputation  or 
disposition  is  shown,  (b) 


a  [1  Wigmore  Ev.,  §  57.] 

b  R.  v.  Rowton,  1  L.  &  C.  520;  R.  v.  Turber field,  1  L.  &  C. 
495,  is  a  case  in  which  the  character  of  a  prisoner  became  in- 
cidentally relevant  to  a  certain  limited  extent.  [2  Wigmore 
Ev.,  §§  1608-1621.] 


CHARACTER  453 

CHARACTER   IN  CRIMINAL  CASES. 
In  General. 

"There  are  two  distinct  problems  of  evidence  about  char- 
acter, in  which  the  common  use  of  one  word  for  two  ideas 
has  caused  confusion:  (1)  Is  a  person's  disposition — i.  e., 
a  trait,  or  group  of  traits,  or  the  sum  of  his  traits — rele- 
vant and  admissible  for  certain  purposes?  (2)  Whenever 
it  is  so  admissible  as  an  evidentiary  fact  and  thus  becomes 
in  its  turn  a  proposition  to  be'  proved,  how  is  it  to  be  evi- 
denced,— by  the  community's  reputation,  and  by  that  only, 
and   on   what   conditions? 

"The  first  question  is  essentially  one  of  relevancy,  though 
auxiliary  policies  often  come  in  to  exclude  relevant  char- 
acter. The  second  question,  however,  is  raised  in  an  en- 
tirely different  quarter  and  has  nothing  to  do  with  rele- 
vancy; moreover,  it  has  nothing  to  do  with  character  as  an 
evidentiary  fact,  but  with  the  mode  of  proving  character, 
assuming  it  to  be  properly  provable  either  as  an  evidentiary 
fact  or  as  an  issue." — 1  Wigmore  Ev.,   §  52. 

Good  Character  of  Defendant. 

Where  the  question  of  self-defense  is  involved,  evidence 
of  good  character  of  defendant  is  admissible. — Jaime  v. 
Territory,  12  Ariz.  5,  94  P.  1092;  Whitley  v.  State,  (Ark.), 

169  S.  W.  952;  People  v.  Bezy,  67  Cal.  223,  7  P.  643;  State 
v.  McGreevey,  17  Idaho  453,  105  P.  1047;  State  v.  Allen, 
23  Idaho  772,  131  P.  1112;  State  v.  Schleagel,  50  Kan.  325, 
31  P.  1105;  State  v.  Truskett,  85  Kan.  804,  118  P.  1047; 
State  v.  Huber,  38  Nev.  253,  148  P.  562;  State  v.  Raice, 
29  S.  D.  Ill,  123  N.  W.  708;  Bullock  v.  State,  73  Tex.  Cr. 
R.   419,   165   S.  W.   196;    Harper  v.   State,    (Tex.    Cr.    R.), 

170  S.  W.  721;  People  v.  Tracy,  1  Utah  343;  State  v.  Ed- 
don,  8  Wash.  292,  36  P.  139;  State  v.  Barr,  11  Wash.  481, 
39  P.  1080. 

In  criminal  prosecutions  the  defendant  may  introduce 
evidence  of  his  good  character  as  to  the  traits  likely  to  be 
involved  in  the  commission  of  the  offense: 

Arkansas:  Rhea  v.  State,  104  Ark.  162,  147  S.  W.  463 
(character  to  be  considered  with  other  evidence  in  passing 
on  guilt  or  innocence). 


454  CHARACTER 

California:  People  v.  Stewart,  23  Cal.  395  (murder;  peace 
and  quietness);  People  v.  Casey,  53  Cal.  360  (murder; 
evidence  of  good  character  admitted  to  rebut  the  presump- 
tion of  malice). 

Idaho:  State  v.  Allen,  23  Ida.  772,  131  P.  1112  (homicide; 
defendant  may  show  that  he  has  a  good  character  for 
peace  and  quiet,  and  also  for  honesty  and  integrity). 
Kansas:  State  v.  Deuel,  63  Kan.  811,  66  P.  1037  (larceny; 
to  show  guilt  or  intent  of  accused) ;  State  v.  Pipes,  65 
Kan.  543,  70  P.  363. 

Montana:  State  v.  Sloan,  22  Mont.  293,  56  P.  364  (homi- 
cide;  previous  good  character). 

Oklahoma:  Friel  v.  State,  6  Okl.  Cr.  532,  119  P.  1124 
(unlawfully  selling  liquor;  reputation  as  a  law-abiding 
citizen,  and  that  he  did  not  have  a  reputation  as  a  whiskey 
peddler) ;  Gilbert  v.  State,  8  Okl.  Cr.  53,  128  P.  1100  (homi- 
cide; good  character  as  to  the  issue  charged). 
Texas:  House  v.  State,  40  Tex.  Cr.  R.  242,  57  S.  W.  825 
(homicide;  reputation  for  peace  and  quiet);  Boatwright  v. 
State, v42  Tex.  Cr.  R.  442,  60  S.  W.  760  (fornication;  that 
particeps  criminis  had  borne  a  good  reputation,  inadmis- 
sible);  Bishop  v.  State,  72  Tex.  Cr.  R.  1,  160  S.  W.  705 
(seduction;  moral  character  and  also  reputation  as  peace- 
able and  law-abiding  citizen). 

Utah:  State  v.  Blue,  17  Utah  175,  53  P.  978  (embezzle- 
ment;  reputation  for  honesty  and  integrity  admissible). 

The  defendant  in  a  criminal  case  may  always  introduce 
evidence  of  his  good  character,  whether  or  not  the  issue  is 
doubtful.— People  v.  Stewart,  28  Cal.  395;  State  v.  Blue, 
17  Utah  175,  53  P.  978. 

Arkansas.  The  defendant  on  trial  for  crime  is  entitled  to 
offer  in  defense  evidence  as  to  his  good  character,  and  the 
only  limitation  by  which  the  rule  should  be  circumscribed 
is  that  in  each  case  the  character  sought  to  be  proved 
should  not  be  general,  but  such  as  would  make  it  unlikely 
that  defendant  would  be  guilty  of  the  particular  crime  with 
which  he  is  charged.  (Homicide  by  stabbing;  good  char- 
acter as  a  quiet  and  peaceable  citizen  admissible  to  dis- 
prove malice  in  an  encounter,  though  the  cutting  was 
fully  proved.)— Kee  v.  State,  28  Ark.  55. 


CHARACTER  455 

Where  the  only  doubtful  issue  in  a  criminal  prosecution 
was  as  to  who  was  the  probable  aggressor,  character  evi- 
dence in  behalf  of  the  defendant  was  held  admissible. — 
Whitley  v.  State,  (Ark.),  169  S.  W.  952. 
California.  Character  and  habits  of  accused  in  homicide 
case  inadmissible  where  guilt  was  evident,  and  the  evidence 
was  offered  to  mitigate  penalty. — People  v.  Witt,  170 
Cal.  104,  148  P.  928. 

Kansas.  Murder.  Good  character  as  a  peaceable  and 
law-abiding  citizen  is  to  be  weighed  together  with  the  other 
evidence  like  any  other  fact. — State  v.  Keefe,  54  Kan.  197, 
38  P.  302. 

North  Dakota.  A  trial  for  bastardy  being  governed  by 
procedure  used  in  civil  actions,  evidence  of  the  reputation 
of  defendant  for  chastity  is  inadmissible. — State  v.  Bru- 
nette, 28  N.  D.  539,  150  N.  W.  271. 

Oklahoma.  A  general  exception  to  the  rule  that  character 
evidence  is  inadmissible  in  civil  cases  is  stated  to  be  that 
where  the  intent  of  the  party  is  a  material  inquiry,  and 
this  question  is  left  in  doubt,  character  may  be  shown  to 
aid  in  the  determination  of  the  question. — Woodmen  of  the 
World  v.  Welch,  16  Okl.  188,  83  P.  547;  Breckenridge  v. 
Drummond,    (Okl.),   155  P.   555. 

Oregon.  Evidence  of  good  character  is  always  admissible 
in  favor  of  the  defendant  in  a  criminal  case  and  it  should 
be  weighed  and  considered  in  connection  with  all  the  other 
evidence  in  the  cause  in  determining  the  guilt  or  innocence 
'of  accused,  and  when  so  considered,  if  there  exists  in  the 
minds  of  the  jury  a  reasonable  doubt  as  to  his  guilt,  he 
should  be  acquitted.— State  v.  Porter,  32  Or.  135,  49  P.  964. 
Texas.  In  criminal  cases  wherever  a  criminal  intent  is 
the  essence  of  the  offense,  evidence  of  the  general  good 
character  of  accused  as  a  law-abiding  citizen  is  relevant, 
and  is  to  be  considered  by  the  jury  as  any  other  evidence 
in  determining  whether  or  not  his  guilt  has  been  estab- 
lished beyond  a  reasonable  doubt. — House  v.  State,  42  Tex. 
Cr.  R.  125,  57  S.  W.  825. 

It  is  only  when  guilty  knowledge  or  criminal  intention  is 
of  the  essence  of  the  offense  that  evidence  of  good  char- 
acter  of   the   accused    is   admissible. — Jones    v.    State,    10 


456  CHARACTER 

Tex.  App.  558.  And  the  evidence  of  good  reputation  must 
be  at  or  before  the  time  defendant  was  charged  with  the 
offense,  not  at  the  time  of  trial. — Caruth  v.  State,  (Tex. 
Cr.  R.),  177  S.  W.  973;  Beesing  v.  State,  (Tex.  Cr.  R.),  180 
S.  W.  256. 

Where  the  prosecuting  witness  who  was  under  the  age 
of  consent  in  a  trial  for  rape  testified  that  her  mother 
forced  her  to  have  intercourse  with  the  accused,  the  mother 
was  equally  guilty  and  evidence  of  her  reputation  for 
virtue  and  chastity  was  legitimate. — Heitman  v.  State, 
(Tex.  Cr.  R.),  180  S.  W.  701. 

Defendant's  Bad  Character. 

The  prosecution  may  not  prove,  as  part  of  its  case,  that 
defendant's  character  is  bad: 

Arkansas:  Younger  v.  State,  100  Ark.  321,  140  S.  W.  139 
(bad  character). 

California:  People  v.  Vertrees,  169  Cal.  404,  146  P.  890 
(inadmissible  to  degrade  defendant). 

Oklahoma:  Sims  v.  State,  11  Okl.  Cr.  382,  146  P.  914  (pos- 
session of  intoxicating  liquor  with  intent  to  sell;  general 
reputation  as  bootlegger  inadmissible) ;  Porter  v.  State,  8 
Okl.  Cr.  64,  126  P.  699  (manslaughter;  reputation  as  dan- 
gerous and  disorderly). 

Oregon.  State  v.  Lee,  46  Or.  40,  79  P.  577  (larceny  of  calf; 
that  defendant  had  been  suspected  of  getting  away  with 
cattle). 

Texas:  Maxwell  v.  State,  (Tex.  Cr.  R.),  78  S.  W.  516; 
Kaufman  v.  State,  73  Tex.  Cr.  R.  454,  165  S.  W.  193  (mur- 
der; that  accused  owned  houses  of  prostitution  and  col- 
lected rents  therefrom). 

Oklahoma.  Possession  of  intoxicating  liquor  with  intent 
to  sell.  Reputation  of  defendant  as  bootlegger  inadmissible 
as  part  of  the  state's  case. — Wilkerson  v.  State,  9  Okl.  Cr. 
662,  132  P.  1120. 

The  bad  character  of  a  defendant  charged  with  a  crime 
cannot  be  shown  by  the  prosecution  until  he  has  put  his 
character  in  issue.— Kirk  v.  State,  11  Okl.  Cr.  203,  145  P. 
307;  Sims  v.  State,  11  Okl.  Cr.  382,  146  P.  914. 


CHARACTER  457 

Texas.  In  a  prosecution  for  arson,  evidence  for  the  prose- 
cution tending  to  show  that  the  defendant  was  of  immoral 
character  is  inadmissible. — McClary  v.  State,  73  Tex.  Cr. 
R.  430,  165  S.  W.  572. 

Where  the  defendant  in  a  criminal  prosecution  does  not 
put  his  character  in  issue,  the  prosecution  cannot  show  his 
bad  character. — Kaufman  v.  State,  73  Tex.  Cr.  R.  454,  165 
S.  W.  193. 

Evidence  by  defendant  of  his  general  reputation  for 
truth  and  veracity  is  properly  excluded,  in  a  prosecution 
for  assault  with  intent  to  murder,  where  his  character  is 
not  attacked  by  the  prosecution. — Jones  v.  State,  74  Tex. 
Cr.  R.  205,  167  S.  W.  1110. 

Rebuttal  of  Good  Character  By  State. 

If  a  defendant  puts  in  evidence  his  own  good  character 
to  show  that  he  would  not  be  likely  to  commit  the  crime 
charged,  then  the  state  has  the  right  to  show  that  his 
character  is  bad: 

California:  People  v.  Nunley,  142  Cal.  441,  76  P.  451  (grand 
larceny);  People  v.  Burke,  18  Cal.  App.  72,  122  P.  435 
(malicious  use  of  explosives  in  structure  occupied  by  mis- 
tress; good  reputation  of  defendant  for  peace  and  quietude, 
and  chastity,  being  offered,  state  could  cross-examine  on 
specific  acts  of  immorality). 

Nebraska:     McCormick   v.    State,    66    Neb.    337,    92   N.   W. 
*  606   (previous  good  character  as  peaceful  and  law-abiding 
citizen;  cross-examination  asking  if  witness  has  known  of 
defendant's  being  arrested). 

Oklahoma:  Montgomery  v.  State,  11  Okl.  Cr.  R.  415,  142 
P.  1048  (selling  intoxicating  liquor;  defendant  introducing 
evidence  of  being  a  law-abiding  citizen,  state  may  show 
payment  of  U.  S.  revenue  tax). 

South  Dakota:  State  v.  King,  9  S.  D.  628,  70  N.  W.  1046 
(seduction;  in  rebuttal  of  defendant's  evidence  as  to  good 
character,  bad  reputation  for  chastity  admissible  up  to 
the  time  he  was  accused). 

Texas:  Johnson  v.  State,  (Tex.  Cr.  R.),  62  S.  W.  756 
(illegal  sale  of  liquor;  defendant  not  having  put  his  char- 
acter as  a  law-abiding  citizen  in  issue,  but  only  his  repu- 
tation for  truth  and  veracity  as  a  witness,  rebuttal  that 


458  CHARACTER 

his  reputation  for  obeying  local  option  law  was  bad,  is 
inadmissible). 

Arkansas.  A  defendant  on  trial  for  a  crime  may  prove 
good  character,  but  the  evidence  should  be  limited  to  such 
character  as  will  show  that  it  would  be  unlikely  that  de- 
fendant would  commit  the  crime  charged.  The  prosecu- 
tion may  rebut  this  evidence  with  proof  of  bad  character, 
for  the  purpose  of  refuting  defendant's  claim  that  he  is  of 
good  character,  and  thus  prevent  defendant  from  imposing 
a  false  character  upon  the  jury. — Ware  v.  State,  91  Ark. 
555,  121  S.  W.  927. 

Such  testimony  must  be  limited  to  that  of  general  rep- 
utation. Neither  good  or  bad  character  can  be  proved  by 
specific  acts  or  deeds. — Ware  v.  State,  Id.;  Shuffield  v. 
State,    (Ark.),    179    S.   W.    650. 

Kansas.  Where  witnesses  have  testified  to  the  good  char- 
acter of  the  defendant,  they  may  be  interrogated  whether 
they  have  not  heard  reports  of  particular  instances  which 
are  inconsistent  with  the  good  reputation  to  which  they 
have  testified,  in  order  to  weaken  or  qualify  the  testimony 
they  have  given.— State  v.  Killion,  95  Kan.  371,  148  P.  643; 
State  v.  McDonald,  57  Kan.  537,  46  P.  966. 

But  when  such  questions  are  answered  in  the  negative, 
evidence  as  to  whether  such  instances  ever  occurred,  is 
irrelevant.— State  v.  Yeater,  95  Kan.  247,  147  P.  1114. 

Oregon.  In  a  criminal  action  for  assault  with  a  dangerous 
weapon,  it  is  competent  for  the  state  to  prove  that  the 
general  reputation  of  the  defendant  as  a  peaceable  and 
law-abiding  citizen  is  bad,  where  defendant  has  offered 
character  evidence  in  his  own  behalf. — State  v.  Selby,  73 
Or.  378,  144  P.  657. 

Texas.  One  seeking  to  have  his  sentence  suspended  under 
the  statute  puts  his  general  reputation  and  character  in 
issue  as  a  peaceable,  law-abiding  citizen  in  controversy, 
and  the  state  has  a  right  to  introduce  evidence  on  those 
subjects.— Martoni  v.  State,  74  Tex.  Cr.  R.  90,  167  S.  W. 
349;  Williamson  v.  State,  74  Tex.  Cr.  R.  289,  167  S.  W. 
360;  Boyd  v.  State,  (Tex.  Cr.  R.),  180  S.  W.  230. 


CHARACTER  459 

Washington.  Until  a  defendant  in  a  criminal  prosecution 
puts  his  character  in  issue,  his  character  cannot  be  as- 
sailed by  the  prosecution;  and  the  admission  of  the  de- 
fendant on  cross-examination  that  he  had  been  discharged 
from  the  navy  for  bad  conduct  was  not  sufficient  to  open 
the  door  for  further  evidence  on  the  subject.  A  discharge 
from  the  navy  is  not  competent  to  show  either  good  or  bad 
character.— State  v.  Shaw,  75  Wash.  326,  135  P.  20. 

Character  of  Deceased  Victim. 
In  prosecutions  for  murder  or  assaults  upon  the  body, 
where  the  plea  is  self-defense,  or  when  it  is  necessary  to 
determine  what  were  the  acts  of  deceased  or  the  person 
injured,  evidence»of  the  character  of  the  latter  is  received: 
Arizona:  Campbell  v.  Territory,  14  Ariz.  109,  125  P.  717 
(dangerous  character  admissible  only  when  it  is  doubtful 
as  to  who  was  the  aggressor). 

Arkansas:  Bloomer  v.  State,  75  Ark.  297,  87  S.  W.  438 
(good  character  of  deceased  as  evidence  in  chief  for  prose- 
cution, inadmissible  when  it  is  not  attacked) ;  Whitley  v. 
State,  114  Ark.  243,  169  S.  W.  952  (good  repute  for  peace 
and   quietness). 

California:  People  v.  Murray,  10  Cal.  310  (murder;  repu- 
tation for  turbulence  inadmissible  when  there  were  no  cir- 
cumstances to  cause  accused  to  believe  himself  in  danger). 
Kansas:  State  v.  Riddle,  20  Kan.  711  (character  as  a 
quarrelsome,  turbulent  man  excluded,  where  only  fists  were 
used  by  deceased) ;  State  v.  Spendlove,  44  Kan.  1,  24  P. 
67  (murder;  character  of  deceased  admissible  when  jury 
in  doubt  as  to  acts  of  deceased  immediately  before  the 
killing);  State  v.  Truskett,  85  Kan.  804,  118  P.  1047  (good 
character  of  deceased  admissible,  where  evidence  of  his 
turbulent  character  was  introduced  by  defendant). 
Nevada:  State  v.  Huber,  38  Nev.  253,  148  P.  562  (turbulent 
character  admissible). 

New  Mexico:  Territory  v.  Trapp,  16  N.  M.  700,  120  P. 
702    (general   reputation   for  violence). 

Oregon:  State  v.  Wilkins,  72  Or.  77,  142  P.  589  (that  de- 
ceased was  not  quarrelsome). 


460  CHARACTER 

Texas:     Rhea  v.  State,  37  Tex.  Cr.  R.  138,  38  S.  W.  1012 
(assault  and  battery;    reputation  of  prosecuting  witness 
admissible,   after  defendant  has   given   evidence  that  the 
former  had  made  a  move  as  if  to  draw  a  pistol) ;   Moore 
v.  State,  46  Tex.  Cr.  R.  54,  79  S.  W.  565  (good  character 
of  deceased  inadmissible,   not  being  attacked) ;    Pettis  v. 
State,  47  Tex.  Cr.  R.  66,  81  S.  W.  312  (when  character  of 
deceased  was  attacked  as  a  violent  and  dangerous  man, 
state  may  show  that  he  was  a  peaceable  and  law-abiding 
man) ;  Lubbock  v.  State,  66  Tex.  Cr.  R.  309,  148  S.  W.  258 
(violent  and  dangerous  man) ;  Hysaw  v.  State,  69  Tex.  Cr. 
R.  562,  155  S.  W.  941   (reputation  for  violence) ;   Berry  v. 
State,   73  Tex.   Cr.   R.   203,   163   S.  W.   964    (quarrelsome; 
state  may  rebut  by  showing  his  reputation  as  peaceable 
and  law-abiding) ;  Bullock  v.  State,  73  Tex.  Cr.  R.  419,  165 
S.  W.  196  (violent  and  dangerous  man) ;  Johnson  v.  State, 
74  Tex.  Cr.  R.  179,  167  S.  W.  733   (dangerous  man;   prose- 
cution may    rebut    by    showing    his    peaceable  and   law- 
abiding   character);    Mason   v.    State,    (Tex.   Cr.    R.),    183 
S.  W.  1153   (fighting  man,  and  of  high  temper). 
Utah:     State  v.  Vacos,  40  Utah  169,  120  P.  497   (evidence 
as  to  peace  and  quietude  admissible  to  rebut  attack  of  ac- 
cused  that   deceased   was   a   quarrelsome   and   dangerous 
man). 

Washington:  State  v.  Eddon,  8  Wash.  292,  36  P.  139  (mur- 
der; deceased's  reputation  for  peaceableness  inadmissible, 
unless  first  assailed  by  accused). 

Arkansas.  The  character  of  deceased  is  admissible  when 
it  tends  to  explain  or  palliate  the  conduct  of  accused. — 
Palmore  v.  State,  29  Ark.  248. 

California.  On  trial  for  murder,  evidence  of  the  character 
of  deceased  is  admissible  only  when  the  immediate  circum- 
stances of  the  killing  render  it  doubtful  whether  the  act 
was  justifiable  or  not. — People  v.  Lombard,  17  Cal.  317. 

Kansas.  Defendant  on  trial  for  murder  may  show  the 
character  of  deceased  as  to  ferocity,  brutality  or  vindictive- 
ness,  where  the  evidence  shows  that  deceased  so  acted 
as  to  give  reasonable  apprehension  of  inflicting  great 
bodily  harm.— State  v.  Keefe,  54  Kan.  197,  38  P.  302. 


CHARACTER  461 

Montana.  When  the  issue  in  homicide  is  self-defense  and 
there  is  doubt  as  to  who  was  the  aggressor,  evidence  of  the 
reputation  of  deceased,  whether  known  to  defendant  or  not, 
is  admissible,  in  order  to  enable  the  jury  to  resolve  the 
doubt;  for  it  is  entirely  in  accord  with  experience  that  a 
turbulent,  violent  man  is  more  aggressive  and  will  more 
readily  bring  on  an  encounter  than  one  who  is  of  the 
contrary  disposition. — State  v.  Jones,  48  Mont.  505,  139 
P.    441. 

Texas.  Assault  with  intent  to  murder:  Defense  that  the 
person  assaulted  was  in  the  act  of  setting  fire  to  one  of 
defendant's  houses  at  night.  Evidence  that  the  person  as- 
saulted was  quarrelsome  and  pugnacious  is  inadmissible. 
—Henderson  v.  State,  12  Tex.  525. 

Utah.  Where  deceased  had  threatened  the  life  of  defend- 
ant, the  character  of  deceased  for  violence  should  be  ad- 
mitted to  show  that  he  was  likely  to  carry  out  his  threat. 
— People  v.  Tracy,  1  Utah.  343. 

Keeping  Disorderly  House. 

In  prosecutions  for  keeping  a  disorderly  house,  the  repu- 
tation of  the  house  is  admissible. — Howard  v.  People,  27 
Colo.  396,  61  P.  595;  Smith  v.  State,  6  Okl.  Cr.  669,  118  P. 
1003;  Patterson  v.  State,  9  Okl.  Cr.  564,  132  P.  693;  Put- 
nam v.  State,  9  Okl.  Cr.  535,  132  P.  916;  Jones  v.  State, 
10  Okl.  Cr.  79,  133  P.  1134;  State  v.  Cambron,  20  S.  D.  282, 
105  N.  W.  241;  Sprague  v.  State,  (Tex.  Cr.  R.),  44  S.  W. 
837;  Brady  v.  State,  (Tex.  Cr.  R.),  57  S,  W.  647;  Barker 
v.  State,  64  Tex.  Cr.  R.  106,  141  S.  W.  529;  Hitchings  v. 
State,   65  Tex.  Cr.   R.  279,   143   S.  W.   1164. 

The  reputation  of  the  keeper  and  inmates  of  such  house 
is  admissible,  as  well  as  that  of  visitors,  in  order  to  show 
the  character  of  the  house: 

Oklahoma:  Jones  v.  State,  10  Okl.  Cr.  79,  133  P.  1134 
(reputation  of  inmates). 

Texas:  Key  v.  State,  71  Tex.  Cr.  R.  485,  160  S.  W.  354 
(same);  Smith  v.  State,  72  Tex.  Cr.  R.  206,  162  S.  W. 
835  (reputation  of  frequent  visitors) ;  Davidson  v.  State, 
(Tex.  Cr.  R),  173  S.  W.  1037  (reputation  of  keeper  and  in- 
mates for  virtue  and  chastity). 


462  CHARACTER 

California.  Character  of  the  inmates  and  frequenters  of 
a  house  is  admissible  to  show  that  it  was  being  used  for 
prostitution  and  assignation. — Demartini  v.  Anderson,  127 
Cal.  33,  59  P.  207. 

Montana.  The  character  of  the  house  may  be  proved  by 
reputation,  in  connection  with  other  circumstances. — State 
v.  Hendricks,   15  Mont.  194,  39  P.  93. 

Evidence  of  general  reputation  of  the  women  who  fre- 
quented it,  including  defendant,  is  admissible. — State  v. 
Hendricks,   15   Mont.    194,   39   P.   93. 

Texas.  Prosecution  for  keeping  disorderly  house.  Evi- 
dence of  defendant's  being  a  common  prostitute  admis- 
sible.— Dailey  v.  State,  (Tex.  Cr.  R.),  55  S.  W.  823. 

CHARACTER  OF  COMPLAINANT   IN   SEXUAL  CRIMES. 

In    sexual    crimes,    to   indicate    the    probability    of    the 
female's  consent,  evidence  of  her  character  for  chastity  is 
relevant,  except  where  her  consent  is  immaterial: 
Arkansas:     Pleasant  v.  State,  15  Ark.  624,  653   (character 
of  complainant  admissible). 

California:  People  v.  Johnson,  106  Cal.  289,  39  P.  622 
(assault  with  intent  to  commit  rape  on  one  under  age 
of  consent;  former  unchastity  of  prosecutrix  inadmissible); 
People  v.  Kuches,  120  Cal.  566,  52  P.  1002  (same;  inde- 
cent conduct  admitted,  but  not  evidence  of  customary  lewd 
conversation);  People  v.  O'Brien,  130  Cal.  1,  62  P.  297 
(rape;  good  character  inadmissible  in  absence  of  its  being 
attacked);  People  v.  Wilmot,  139  Cal.  103,  72  P.  838  (rape, 
under  age;  former  unchastity  inadmissible). 
Texas:  Rodes  v.  State,  38  Tex.  Cr.  R.  328,  42  S.  W.  990 
(fornication;  bad  character  of  prosecutrix  inadmissible); 
Wilson  v.  State,  (Tex.  Cr.  R),  67  S.  W.  106  (indecent  asi- 
sault;  reputation  of  prosecutrix  for  virtue  and  chastity  ad- 
missible). 

Utah:  State  v.  Hilberg,  22  Utah  27,  61  P.  215  (rape  under 
age;  former  unchastity  inadmissible);  State  v.  McCune, 
16  Utah  170,  51  P.  818  (assault  with  intent  to  commit  rape; 
bad  reputation  for  chastity  admissible). 
California.  It  has  been  held  that  evidence  of  particular 
acts  of  intercourse  with  other  men  is  admissible  to  show 


CHARACTER  463 

the  probability  of  consent. — People  v.  Benson,  6  Cal.  221; 
People  v.  Shea,  125  Cal.  151,  57  P.  885. 

CHARACTER  AS  AN  ELEMENT  OF  THE  CRIME. 

On  a  prosecution  for  keeping  a  bawdy  house,  the  char- 
acter of  the  inmates,  including  that  of  defendant,  is  admis- 
sible.—Howard  v.  People,  27  Colo.  396,  61  P.  595;  State  v. 
Hendricks,  15  Mont.  194,  39  P.  93;  Nelson  v.  Territory,  5 
Okl.  512,  49  P.  920;  Jones  v.  State,  10  Okl.  Cr.  79,  133  P. 
1134;  State  v.  McGinnis,  56  Or.  163,  108  P.  132;  Sylvester 
v.  State,  42  Tex.  496;  Wimberly  v.  State,  53  Tex.  Cr.  R.  12, 
108  S.  W.  384;  Davidson  v.  State,  (Tex.  Cr.  R.),  173  S.  W. 
1037. 

Oklahoma.  As  a  general  rule  evidence  as  to  the  char- 
acter of  a  defendant  in  a  criminal  prosecution  cannot  be 
introduced  unless  the  defendant  first  introduces  evidence 
of  his  good  character,  but  this  rule  does  not  apply  to  cases 
in  which  the  character  of  the  defendant  is  an  element  of 
the  crime  charged,  such  as  pandering  or  keeping  a  dis- 
orderly house.— Edmons  v.  State,  9  Okl.  Cr.  603,  132  P.  923; 
Putman   v.    State,   9    Okl.    Cr.   535,   132   P.    916. 

Traits  Involved. 
When  a  defendant  in   a   criminal   prosecution  elects  to 
put  his  general  reputation  in  evidence,  the  testimony  upon 
that  point  must  be  limited  to  the  particular  trait  of  char- 
acter involved  in  the  charge: 

California:  People  v.  Josephs,  7  Cal.  129  (attempt  to  com- 
mit rape;  general  reputation  for  morality  and  good  be- 
havior inadmissible) ;  People  v.  Stewart,  23  Cal.  395  (mur- 
der; peace  and  quiet  of  accused  admissible);  People  v. 
Fair,  43  Cal.  137  (murder  by  mistress;  her  character  for 
chastity  inadmissible) ;  People  v.  Doggett,  62  Cal.  27  (mur- 
der; reputation  for  peace  and  quietness  admissible);  Peo- 
ple v.  Crisman.  135  Cal.  182,  67  P.  136  (murder;  reputation 
as  peaceable  and  quiet  man,  admissible;  honesty  and  in- 
tegrity, inadmissible) ;  People  v.  Haydon,  18  Cal.  App.  543, 
123  P.  1102  (murder;  testimony  being  received  that  repu- 
tation of  deceased  for  peace  and  quietude  was  good,  it  is 
improper   to    ask   on    cross-examination    whether    witness 


464  CHARACTER 

had  heard  that  deceased  had  ever  been  accused  of  rob- 
bing a  safe). 

Texas:  Cooper  v.  State,  72  Tex.  Cr.  R.  266,  162  S.  W.  364 
(rape  of  daughter;  accused  not  entitled  to  prove  that  his 
conduct  to  his  children  was  kind,  considerate,  loving  and 
tender). 

Washington:  State  v.  Coates,  22  Wash.  601,  61  P.  726  (burg- 
lary; character  of  defendant's  work  on  police  force  in- 
admissible); State  v.  Surry,  23  Wash.  655,  63  P.  557  (pa- 
trolman shooting  suspect;  reputation  as  careful,  conserva- 
tive and  conscientious  peace  officer,  inadmissible  (sic?); 
reputation  for  peace  and  quiet,  admissible). 
Wyoming:  Meldrum  v.  State,  23  Wyo.  12,  146  P.  596 
(murder,  self  defense;  reputation  of  being  a  prudent,  dis- 
creet and  careful  peace  officer,  inadmissible  for  defendant). 
Arizona.  In  order  that  evidence  of  general  reputation  of 
good  character  be  admissible,  it  must  be  of  character  in  the 
trait  involved  in  the  charge.  So  in  a  prosecution  for  the 
illegal  sale  of  intoxicants  to  Indians,  evidence  of  defend- 
ant's reputation  as  a  law-abiding  citizen  in  the  community 
in  which  he  resides  is  not  admissible. — Chung  Sing  v. 
United  States,  4  Ariz.  217,  36  P.  205. 

New  Mexico.  A  defendant  in  a  criminal  prosecution  may 
offer  evidence  of  good  character  to  prove  that  it  was  such 
as  to  make  it  unlikely  that  he  would  have  committed  the 
act  with  which  he  is  charged,  but  such  evidence  must  be 
confined  to  the  nature  of  the  offense  under  charge  and  bear 
some  pertinent  analogy  and  reference  to  it.  Evidence  of 
his  general  reputation  as  to  the  particular  traits  involved 
in  the  issue  is  admissible.  So,  evidence  of  the  reputation 
of  a  woman  charged  with  homicide  for  chastity  and  con- 
jugal fidelity  was  held  to  have  been  properly  excluded, 
since  it  would  not  tend  to  prove  that  it  was  unlikely  that 
she  would  have  committed  the  act  of  homicide. — State  v. 
McKnight,  21  N.  M.  14,  153  P.  76. 

Oregon.  Unless  defendant  offers  evidence  as  to  his  char- 
acter, the  prosecution  is  not  permitted  to  submit  any  testi- 
mony on  that  point,  but  after  he  has  put  his  character  in 
issue,   evidence   of   bad   character  is   competent.  In   cases 


CHARACTER  465 

involving  violence  on  the  part  of  the  defendant  in  the 
commission  of  the  act  charged,  the  testimony  is  not  re- 
stricted to  any  peculiar  trait  of  character,  but  his  general 
bad  character  may  be  shown.  In  a  criminal  prosecution 
for  assault  and  battery  with  a  dangerous  weapon,  the  state 
may  prove  that  the  general  reputation  of  the  defendant  as 
a  peaceable,  law-abiding  citizen  is  bad. — State  v.  Selby, 
73  Or.  378,  144  P.  657. 

Texas.  In  a  charge  of  incest,  reputation  of  defendant  for 
moral  character  is  admissible. — Poyner  v.  State,  40  Tex. 
Cr.  R.  640,  48  S.  W.  516. 

In  a  prosecution  for  keeping  a  gambling  table,  evidence 
of  the  reputation  of  the  defendant  as  an  industrious,  hard- 
working man  is  properly  excluded.  That  his  reputation 
as  a  peaceable,  law-abiding  citizen  is  good,  is  competent. 
—Stevens  v.  State,  70  Tex.  Cr.  R.  565,  159  S.  W.  505. 
Utah.  Evidence  of  good  character,  or  evidence  to  the  con- 
trary, must  be  confined  to  the  general  reputation  of  the 
person,  or  to  the  general  reputation  of  the  particular  trait 
of  character  in  issue,  not  by  proof  of  particular  acts. — 
Harrison  v.  Harker,  44  Utah  541,  142  P.  716;  State  v.  An- 
selmo,  46  Utah  137,  148  P.   1071. 

Washington.  Proof  of  good  character  to  be  relevant  must 
be  confined  to  the  nature  of  the  offense  under  charge,  and 
bear  some  pertinent  analogy  and  reference  to  it;  hence, 
where  one  is  charged  with  accepting  the  earnings  of  a  pros- 
titute, evidence  that  his  reputation  for  being  a  faithful 
police  officer  and  for  truth  and  veracity  is  good,  is  prop- 
erly excluded.— State  v.  Surry,  23  Wash.  655,  63  P.  557; 
State  v.  Schuman,  89  Wash.  9,  153  P.  1084. 

The  character  or  reputation  an  accused  is  entitled  to 
prove  must  always  be  such  as  would  make  it  unlikely  that 
he  would  commit  the  particular  offense  with  which  he  is 
charged.— State  v.  Surry,  23  Wash.  655,  63  P.  557. 

CHARACTER,    HOW    SHOWN. 

General   Reputation. 

Where  the  issue  is  self  defense,  and  it  is  in  question 

who  began  the  quarrel  or  made  the  attack,  the  character 

of  deceased  as  a  violent  man  must  be  shown  by  general 


466  CHARACTER 

reputation,  and  not  by  individual  opinion,  or  by  particular 
acts  uncommunicated  to  defendant: 

Montana:  State  v.  Jones,  48  Mont.  505,  139  P.  441  (that 
he  had  been  confined  in  the  penitentiary  of  another  state, 
inadmissible). 

New  Mexico:  Territory  v.  Trapp,  16  N.  M.  700,  120  P. 
702  (bragging  about  being  a  fighter,  inadmissible). 
North  Dakota:  State  v.  Thoemke,  11  N.  D.  386,  92  N.  W. 
480  (individual  opinion  of  witness,  excluded). 
Texas:  Gay  v.  State,  40  Tex.  Cr.  R.  242,  49  S.  W.  612  (gen- 
eral reputation  only);  Lacoume  v.  State,  (Tex.  Cr.  R.), 
143  S.  W.  626  (particular  acts,  inadmissible) ;  Lubbock  v. 
State,  (Tex.  Cr.  R.),  147  S.  W.  258  (that  he  had  made  a 
deadly  assault  on  a  young  man,  inadmissible) ;  Bullock  v. 
State,  73  Tex.  Cr.  R.  419,  165  S.  W.  196  (general  reputation 
only);  Barnett  v.  State,  (Tex.  Cr.  R.),  176  S.  W.  580 
(same);  Mason  v.  State,  (Tex.  Cr.  R.),  183  S.  W.  1153 
(same);  Neyland  v.  State,  (Tex.  Cr.  R.),  187  S.  W.  196 
(violent  acts,  inadmissible). 

The  prosecution,  in  rebuttal  of  defendant's  evidence 
of  good  character,  may  not  offer  evidence  of  particular 
bad  acts: 

Arkansas:  Ware  v.  State,  91  Ark.  555,  121  S.  W.  927 
(murder;  that  daughter  of  deceased  had  a  child  by  defend- 
ant, inadmissible,  where  the  trouble  could  not  have  arisen 
thereby,  because  deceased  did  not  know  of  it). 
California:  People  v.  Dye,  75  Cal.  112,  16  P.  537  (murder; 
attempting  to  make  money  out  of  his  wife's  shame). 

Kansas:  State  v.  Kirby,  62  Kan.  436,  63  P.  752  (murder; 
whether  he  had  maintained  a  "joint,"  and  had  harbored 
lewd  women  in  his  hotel). 

Nebraska:  Olive  v.  State,  11  Neb.  1,  7  N.  W.  444  (mur- 
der; having  drawn  a  revolver  on  another  occasion);  Pet- 
terson  v.  State,  41  Neb.  538.  59  N.  W.  917  (assault  with 
intent  to  commit  rape;  that  he  had  once  attempted  to 
induce  witness  to  procure  girls);  Bayse  v.  State,  45  Neb. 
261,  63  N.  W.  811  (murder;  that  accused  had  had  a  quarrel 
and   struck  a   man   several   years   before). 


CHARACTER  467 

Where  the  character  of  accused  is  offered  in  his  behalf, 
only  general  reputation  as  to  the  traits  involved,  and  not 
proof  of  specific  acts  is  admissible. 

California:  People  v.  Murphy,  146  Cal.  502,  80  P.  709 
(murder  of  prison  guard;  that  he  had  been  a  good  pri- 
soner). 

Montana:     State  v.  Brooks,  23  Mont.  146,  57  P.  1038  (that 
defendant  had  delivered  discourses  at  a  church). 
North    Dakota:     State   v.   Thoemke,   11   N.   D.   386,   92   N. 
W.  480  (must  be  confined  to  general  reputation  in  the  com- 
munity in  which  he  resides). 

Texas:  Gay  v.  State,  40  Tex.  Cr.  R.  242,  49  S.  W.  612  (that 
he  had  never  before  been  charged  with  a  criminal  offense) ; 
Whitehead  v.  State,  61  Tex.  Cr.  R.  558,  137  S.  W.  356  (that 
jurors  before  whom  a  former  trial  was  had  went  on  his 
bail  bond). 

Utah:  State  v.  Anselmo,  46  Utah  137,  148  P.  1071  (pos- 
session of  property  which  might  be  used  for  criminal  pur- 
poses). 

Washington:  State  v.  Coates,  22  Wash.  601,  61  P.  726 
(burglary;  character  of  defendant  while  a  member  of 
police). 

Nevada.  Individual  knowledge  of  witness  as  to  defend- 
ant's character,  inadmissible. — State  v.  Pearce,  15  Nev.  188. 

Specific  Acts. 
Arkansas.  A  bad  character  for  violence  cannot  be  shown 
by  evidence  of  specific  acts.  (That  watchman  driving 
plaintiff  away  from  depot  so  that  he  missed  his  train  had 
previously  shot  one  H.). — St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Stroud,  67  Ark.  112,  56  S.  W.  870. 

Oklahoma.  Prosecution  for  carrying  weapons.  Evidence 
of  tearing  down  by  defendant  of  house  occupied  by  plain- 
tiff as  his  tenant,  inadmissible. — Walburn  v.  Territory,  9 
Okl.  23,  59  P.  972. 

South  Dakota.  Sales  of  liquor  on  the  premises  are  ad- 
mitted to  show  the  character  of  a  house  as  disorderly. — 
State  v.  Cambron,  20  S.  D.  282,  105  N.  W.  241. 


468  CHARACTER 

Personal  Knowledge  or  Opinion. 
Nebraska.  It  is  not  error  on  the  part  of  the  trial  court  to 
exclude  the  knowledge  of  a  witness,  purporting  to  have 
been  gained  by  personal  acquaintance  or  dealings  with  the 
individual  whose  character  is  in  question,  as  only  the  gen- 
eral reputation  of  such  individual  is  admissible. — Berneker 
v.  State,  40  Neb.  810,  59  N.  W.  372. 

REPUTATION,    HOW    PROVED. 
In  General. 

Colorado.  Petition  signed  by  citizens  of  the  community, 
in  which  defendant  was  referred  to  as  a  lewd  woman,  is 
inadmissible  to  show  her  reputation. — Howard  v.  People, 
27  Colo.  396,  61  P.  595. 

Nebraska.  The  evidence  as  to  the  reputation  of  accused 
must  be  confined  to  that  acquired  in  the  place  where  he 
was  living  or  formerly  resided. — Younger  v.  State,  80 
Neb.  201,  114  N.  W.  170. 

South  Dakota.  Knowledge  of  the  reputation  of  a  person 
or  house  of  this  character  is  based  upon  what  the  witness 
has  heard  said  relative  to  it  in  the  community  in  which 
the  person  resides,  or  in  which  the  house  is  situated. — 
State  v.  Cambron,  20  S.  D.  282,  105  N.  W.  241. 

Aeticle  57. 
chaeactee  as  affecting  damages. 
In  civil  cases,  the  fact  that  the  character  of  any- 
party  to  the  action  is  such  as  to  affect  the  amount 
of  damages  which  he  ought  to  receive,  is  generally 
deemed  to  be  irrelevant,  (a) 


a  In  1  Ph.  Ev.  504,  &c,  and  T.  E.  s.  333,  all  the  cases  are 

referred  to.     The  most  important  are  v.  Moor,  1  M.  & 

S.  284,  which  treats  the  evidence  as  admissible,  though  per- 
haps it  does  not  absolutely  affirm  the  proposition  that  it  is 
so;  and  Jones  v.  Stevens,  11  Price,  235,  see  especially  pp.  265, 
268,  which  decides  that  it  is  not.  The  question  is  now  ren- 
dered comparatively  unimportant,  as  the  object  for  which 
such  evidence  used  to  be  tendered  can  always  be  obtained  by 
cross-examining  the  plaintiff  to  his  credit.  [1  Wigmore  Ev., 
§   70  et  seq.] 


CHARACTER  469 

CHARACTER  AS  AFFECTING  DAMAGES. 

In  actions  to  recover  damages  for  death  or  permanent 
disability,  the  character  and  habits  of  the  person  injured 
are  admissible  on  the  question  of  damages: 

Arkansas:  Riddle  v.  Riley,  (Ark.),  176  S.  W.  134  (perma- 
nent disability;  that  plaintiff  was  an  industrious,  moral, 
and  hard-working  man). 

California:  Barboza  v.  Pacific  Portland  Cement  Co.,  162 
Cal.  36,  120  P.  767  (death  by  defendant's  negligence;  that 
deceased  did  not  drink  or  gamble  admissible  as  bearing 
upon  the  value  of  his  life  to  wife  and  children). 

Texas:  Cameron  Mill  &  Elev.  Co.  v.  Anderson,  98  Tex. 
156,  81  S.  W.  282  (injury  to  minor;  his  habits  of  industry, 
sobriety  and  economy,  admissible) ;  Beaumont  Traction  Co. 
v.  Dilworth,  (Tex.  Civ.  App.),  94  S.  W.  352  (that  deceased 
was  healthy,  sober,  industrious,  and  worked  regularly,  ad- 
missible); Fort  Worth  &  R.  G.  Ry.  Co.  v.  Keith,  (Tex. 
Civ.  App.),  163  S.  W.  142  (that  deceased  was  an  industrious 
and  energetic  man,  admissible). 

Nebraska.  In  actions  for  breach  of  promise,  evidence  of 
the  reputation  of  defendant's  wealth  is  admissible. — Strat- 
ton  v.  Dole,  45  Neb.  472,  63  N.  W.  875. 

Malicious  prosecution  on  a  charge  of  insanity.  General 
reputation  as  insane  admitted  in  mitigation  of  damages. — 
Hiersche  v.  Scott,  (Neb.),  95  N.  W.  494. 

Texas.  In  mitigation  of  damages  for  humiliation  and 
mortification  resulting  from  exposure  of  the  person  of 
plaintiff  by  violence  of  a  conductor  and  one  assisting  him 
in  ejecting  her  from  a  berth,  evidence  that  she  had  kept  a 
house  of  prostitution  and  had  been  a  prostitute  was  admis- 
sible.—Houston  &  T.  C.  R.  Co.  v.  Ritter,  16  Tex.  Civ.  App. 
482,  41  S.  W.  753. 

In  an  action  for  damages  for  personal  injuries,  evidence 
that  plaintiff  was  a  prostitute  is  inadmissible  on  the  ques- 
tion of  damages.— Ft.  Worth  &  S.  F.  R.  Co.  v.  Smith,  34 
Tex.  Civ.  App.  612,  79  S.  W.  340. 


470  CHARACTER 

NOTE    XXV. 

(To  Chapter  VI.) 

See  1  Ph.  Ev.  502-508;  T.  E.  ss.  325-336;  Best,  ss.  257-263; 
3  Russ.  Cr.  299-304.  The  subject  is  considered  at  length  in 
R.  v.  Rowton,  1  L.  &  C.  520.  One  consequence  of  the  view 
of  the  subject  taken  in  that  case  is  that  a  witness  may 
with  perfect  truth  swear  that  a  man,  who  to  his  knowledge 
has  been  a  receiver  of  stolen  goods  for  years,  has  an  excel- 
lent character  for  honesty,  if  he  has  had  the  good  luck  to 
conceal  his  crimes  from  his  neighbors.  It  is  the  essence  of 
successful  hypocrisy  to  combine  a  good  reputation  with  a 
bad  disposition,  and  according  to  R.  v.  Rowton,  the  reputation 
is  the  important  matter.  The  case  is  seldom,  if  ever,  acted 
on  in  practice.  The  question  always  put  to  a  witness  to 
character  is,  "What  is  the  prisoner's  character  for  honesty, 
morality  or  humanity?  as  the  case  may  be;  nor  is  the  witness 
ever  warned  that  he  is  to  confine  his  evidence  to  the  pris- 
oner's reputation.  It  would  be  no  easy  matter  to  make  the 
common  run  of  witnesses  understand  the  distinction. 


PART  II. 
ON    PROOF 


472  JUDICIAL   NOTICE 


CHAPTER  VII. 

FACTS  PROVED  OTHERWISE  THAN  BY  EVIDENCE- 
JUDICIAL  NOTICE. 

Article  58.* 
of  what  facts  the  court  takes  judicial  notice. 

It  is  the  duty  of  all  judges  to  take  judicial  no- 
tice of  the  following  facts: — 

(1)  All  unwritten  laws,  rules  and  principles 
having  the  force  of  law  administered  by  any  Court 
sitting  under  the  authority  of  Her  Majesty  and 
her  successors  in  England  or  Ireland,  whatever 
may  be  the  nature  of  the  jurisdiction  thereof. 

(2)  All  public  Acts  of  Parliament,  (a)  and  all 
Acts  of  Parliament  whatever,  passed  since  Feb- 
ruary 4,  1851,  unless  the  contrary  is  expressly 
provided  in  any  such  Act.  (b) 

(3)  The  general  course  of  proceeding  and  priv- 
ileges of  Parliament  and  of  each  House  thereof, 
and  the  date  and  place  of  their  sittings,  but  not 
transactions  in  their  journals,  (c) 

(4)  All  general  customs  which  have  been  held 
to  have  the  force  of  law  in  any  division  of  the 
High  Court  of  Justice  or  by  any  of  the  superior 


*  See  Note  at  end  of  Article. 

a  1  Ph.  Ev.  460-461;  T.  E.  s.  4,  and  see  36  &  37  Vict.,  d 
66   (Judicature  Act  of  1873),  s.  25. 

b  13  &  14  Vict.,  c.  21,  ss.  7,  8,  and  see  (for  date)  caption 
of  session  of  14  &  15  Vict. 

c  1    Ph.   Ev.    460;    T.   E.    s.    5. 


JUDICIAL   NOTICE  473 

courts  of  law  or  equity,  and  all  customs  which 
have  been  duly  certified  to  and  recorded  in  any 
such  court,  (d) 

(5)  The  course  of  proceeding  and  all  rules  of 
practice  in  force  in  the  Supreme  Court  of  Justice. 
Courts  of  a  limited  or  inferior  jurisdiction  take 
judicial  notice  of  their  own  course  of  procedure 
and  rules  of  practice,  but  not  of  those  of  other 
courts  of  the  same  kind,  nor  does  the  Supreme 
Court  of  Justice  take  judicial  notice  of  the  course 
of  procedure  and  rules  of  practice  of  such  Courts, 
(e) 

(6)  The  accession  and  [semble]  the  sign  man- 
ual of  Her  Majesty  and  her  successor*,  (f) 

(7)  The  existence  and  title  of  every  State  and 
Sovereign  recognized  by  Her  Majesty  and  her  suc- 
cessors, (g) 

(8)  The  accession  to  office,  names,  titles,  func- 
tions, and,  when  attached  to  any  decree,  order, 
certificate,  or  other  judicial  or  official  documents, 
the  signatures,  of  all  the  judges  of  the  Supreme 
Court  of  Justice,  (h) 


d  The  old  rule  was  that  each  court  took  notice  of  customs 
held  by  or  certified  to  it  to  have  the  force  of  law.  It  is  sub- 
mitted that  the  effect  of  the  Judicature  Act,  which  fuses  all 
the  courts  together,  must  be  to  produce  the  result  stated  in 
the  text.  As  to  the  old  law,  see  Piper  v.  Chappell,  14  M.  & 
W.  649-650.  Ex  parte  Powell,  In  re  Matthews,  L.  R.  1  Ch. 
Div.  505-507,  contains  some  remarks  by  Lord  Justice  Mellish, 
as  to  proving  customs  till  they  come  by  degrees  to  be  judi- 
cially  noticed. 

e  1  Ph.  Ev.  462-463;  T.  E.  s.  19. 
f  1  Ph.  Ev.  458;  T.  E.  ss.  16.  12. 
g  1  Ph.  Ev.   460;  T.  E.  a.   3. 


474  JUDICIAL  NOTICE 

(9)  The  Great  Seal,  the  Privy  Seal,  the  seals  of 
the  Superior  Courts  of  Justice,  (i)  and  all  seals 
which  any  court  is  authorized  to  use  by  any  Act 
of  Parliament, (j)  certain  other  seals  mentioned 
in  Acts  of  Parliament,  (j)  the  seal  of  the  Corpora- 
tion of  London,  (k)  and  the  seal  of  any  notary 
public  in  the  Queen's  dominions.  (1) 

(10)  The  extent  of  the  territories  under  the 
dominion  of  Her  Majesty  and  her  successors;  the 
territorial  and  political  divisions  of  England  and 
Ireland,  but  not  their  geographical  position  or  the 
situation  of  particular  places ;  the  commencement, 
continuance  and  termination  of  war  between  Her 
Majesty  and  any  other  Sovereign;  and  all  other 
public  matters  directly  concerning  the  general 
government  of  Her  Majesty's  dominions,  (m) 

(11)  The  ordinary  course  of  nature,  natural 
and  artificial  divisions  of  time,  the  meaning  of 

English  words,  (n) 

(12)  All  other  matters  which  they  are  directed 
by  any  statute  to  notice,  (o) 


h  1  Ph.  462;  T.  E.  19;  and  as  to  latter  part,  8  &  9  Vict.,  c. 
113,  s.  2,  as  modified  by  36  &  37  Vict.,  c.  66,  s.  76  (Judicature 
Act   of   1873). 

i  The  Judicature  Acts  confer  no  seal  on  the  Supreme  or 
High  Court  or  its  divisions. 

j  Doe  v.  Edwards,  9  A.  &  E.  555.     See  a  list  in  T.  E.  s.  6. 

k  Ph.   Ev.   464;   T.   E.   s.    6. 

1  Cole  v.  Sherard,  11  Ex.  482.  As  to  foreign  notaries,  see 
Earl's  Trust,  4  K.  &  J.  300. 

m   1  Ph.  Ev.  458,  460,  466;  and  T.  E.  ss.  15-16. 

n  1  Ph.  Ev.   465-466;  T.  E.  s.  14. 

o  E.  g.,  the  Articles  of  War.     See  sec.  1  of  the  Mutiny  Act. 


JUDICIAL   NOTICE  475 

[The  foregoing  matters  of  which  courts  take  judicial  notice, 
as  laid  down  by  the  learned  author,  are  more  appropriate  to 
England  than  to  this  country,  and  the  following  text  will  be 
substituted  therefor,  as  more  applicable  to  the  United  States, 
the  principles  being  practically  the  same,  however,  in  each 
country. — Ed.    note.] 

It  is  the  duty  of  all  judges  to  take  judicial  no- 
tice of  the  following  facts: — 

[(1)  The  existence  of  such  foreign  govern- 
ments as  are  recognized  by  the  government  of  the 
United  States,  their  possessions  and  citizens,  and 
in  some  instances  their  laws,  but  not  their  in- 
ferior departments;  international  law  or  the  law 
of  nations;  the  treaties  which  the  national  gov- 
ernment makes  with  such  foreign  governments, 
and  their  proclamations  in  carrying  the  same  into 
effect,  as  well  as  the  treaties  between  the  United 
States  and  the  various  Indian  tribes ; 

(2)  The  general  laws  of  the  United  States,  and 
those  of  their  own  particular  state,  its  legislative 
proceedings  and  journals,  and  the  charters  of  mu- 
nicipal corporations  within  it,  but  not  generally 
municipal  ordinances,  private  statutes  or  the  laws 
of  sister  states; 

(3)  Matters  relating  to  government  and  its  ad- 
ministration, administrative  rules  and  regulations, 
political  subdivisions  and  bodies,  elections  and  ap- 
pointments to  office,  official  proclamations,  pro- 
ceedings, reports  and  acts,  offices  and  official  po- 
sition and  authority  and  official  signatures  and 
seals. 


476  JUDICIAL  NOTICE 

(4)  The  existence,  organization,  jurisdiction, 
powers  and  terms  of  courts;  the  officers  thereof, 
and  in  some  instances  of  judicial  proceedings  and 
records,  but  not  generally  of  the  rules  of  other 
courts. 

(5)  Well  established  customs  and  usages,  im- 
portant corporations,  the  management  and  con- 
duct of  occupations,  course  and  laws  of  nature, 
operation  and  effect  of  natural  forces,  qualities 
and  properties  of  matter,  the  phenomena  of  ani- 
mal and  vegetable  life,  weights  and  values,  time, 
days  and  dates;  facts  relating  to  human  life, 
health,  habits  and  acts;  personal  status  and  con- 
dition, matters  of  art  and  skill,  scientific  facts  and 
principles,  and  such  geographical,  historical  and 
statistical  facts  as  are  universally  known  and  ac- 
cepted, together  with  all  matters  of  universal  rec- 
ognition or  notoriety. 

(6)  The  ordinary  meaning  of  words  which  gen- 
eral usage  has  attached  to  them  will  be  judicially 
noticed;  abbreviations  in  common  use,  and  gen- 
erally, all  matters  of  common  knowledge.] 

JUDICIAL    NOTICE. 

In    General. 

"That  a  matter  is  judicially  noticed  means  merely  that  it  is 
taken  as  true  without  the  offering  of  evidence  by  the  party 
who  should  ordinarily  have  done  so.  But  the  opponent  is  not 
prevented  from  disputing  the  matter  by  evidence,  if  he  be- 
lieves it  disputable."— 4  Wigmore  Ev.,    §    2567.] 

Whatever  is  generally  known  within  the  limits  of  the 
jurisdiction  of  the  court  need  not  be  proved,  and  the  same 
is  true  as  to  facts  of  universal  application: 

California:     Irwin  v.  Phillips,  5  Cal.  140   (tacit  assent  by 
governments  of  state  and  nation  as  to  occupancy  of  min- 


JUDICIAL  NOTICE  477 

eral  lands) ;  Brumagim  v.  Bradshaw,  39  Cal.  24  (geographi- 
cal position  of  a  portion  of  San  Francisco). 
Utah:  State  v.  Bates,  22  Utah  65,  61  P.  905  (records  of 
court  and  decisions  of  U.  S.  Supreme  Court). 
Washington:  Mullen  v.  Sackett,  14  Wash.  100,  44  P.  136 
(that  assessment  rolls  showed  uncollected  taxes) ;  Gott- 
stein  v.  Lister,  88  Wash.  462,  153  P.  595  (that  number  of 
electors  in  state  is  not  900,000). 

The  great  seal  of  the  nation  is  judicially  known. — Yount 
v.  Howell,  14  Cal.  465;  Phillips  v.  Lyons,  1  Tex.  392. 
Nebraska.  Courts  will  take  notice  without  proof  of  events 
which  are  generally  known  within  the  limits  of  their  juris- 
diction. This  will  include  changes  in  the  office  of  the 
chief  executive,  and  such  acts  of  public  and  general  in- 
terest as  may  be  said  to  be  conspicuous  events  in  the  his- 
tory of  the  state. — State  ex  rel.  Thayer  v.  Boyd,  34  Neb. 
435,  51  N.  W.  964. 

United  States.  Courts  will  take  judicial  notice  of  what- 
ever is  generally  known  within  the  limits  of  their  juris- 
diction; and,  if  the  judge's  memory  is  at  fault,  he  may 
refresh  it  by  resorting  to  any  means  for  that  purpose 
which  he  may  deem  safe  and  proper.  This  extends  to 
such  matters  of  science  as  are  involved  in  the  cases 
brought  before  him. — Brown  v.  Piper,  91  U.  S.  37. 

Among  the  things  of  which  judicial  notice  is  taken  are 
the  laws  of  nations;  the  general  customs  and  usages  of  mer- 
chants; the  notary's  seal;  things  which  must  happen  ac- 
cording to  the  laws  of  nature;  the  coincidence  of  the  days 
of  the  week  with  those  of  the  month;  the  meaning  of 
words  in  the  vernacular  language;  the  customary  abbre- 
viations of  Christian  names;  the  accession  of  the  Chief 
Magistrate  to  office;  and  his  leaving  it.  In  this  country, 
such  notice  is  taken  of  the  appointment  of  members  of 
the  cabinet,  the  election  and  resignation  of  senators,  and 
of  the  appointment  of  marshals  and  sheriffs,  but  not  of 
their  deputies.  The  courts  of  the  United  States  take  ju- 
dicial notice  of  the  ports  and  waters  of  the  United  States 
where  the  tide  ebbs  and  flows,  and  of  the  boundaries  of 
the  several  states  and  judicial  districts,  and  of  the  laws 


478  JUDICIAL  NOTICE 

and  jurisprudence  of  the  several  states  in  which  they 
exercise  jurisdiction. — Brown  v.  Piper,  91  U.  S.  37. 

FOREIGN     LAWS    AND    RELATIONS. 

Courts  take  judicial  notice  of  the  existence  of  such  for- 
eign governments  as  are  recognized  by  the  government  of 
the  United  States: 

Federal:     Schoerken  v.  Swift,   (C.  C),  7  Fed.  469. 
Oregon:     Franciscovich  v.  Walton,  77  Or.  36,  150  P.  261 
(that  a  subject  of  Bulgaria  is  not  a  national  of  Russia). 

Also  of  their  possessions.— Lane,  ex  parte,  6  Fed.  34 
(that  the  province  of  Ontario  is  a  British  possession). 

Certain  foreign  acts  will  be  taken  judicial  notice  of: 
United  States:     The  New  York,  175  U.  S.  187,  20  S.  Ct.  67 
(regulation  of  navigation). 

New  York:  Hall,  In  re,  61  App.  Div.  266,  70  N.  Y.  S.  406 
(that  the  common  law  is  not  and  never  was  in  force  in 
France  so  as  to  render  valid  a  common  law  marriage) ; 
Hooper  v.  Pagan,  7  Dane  Abr.  645  (regulating  appeals  in 
prize  cases). 

The  laws  of  a  foreign  country  or  territory  existing  at 
the  time  an  independent  state  or  territory  was  carved  out, 
are  judicially  known  to  the  courts  of  such  state  or  terri- 
tory.—Wells  v.  Stout,  9  Cal.  479;  Crandall  v.  Sterling  G. 
M.  Co.,  1  Colo.  106;  State  v.  Sais,  47  Tex.  307;  Zarate  v. 
Vallareal,   (Tex.  Civ.  App.),  155  S.  W.  328. 

The  court  will  notice  without  proof  treaties  with  for- 
eign governments,  and  their  proclamations  carrying  the 
same  into   effect: 

United  States:  United  States  v.  Reynes,  50  U.  S.  (9  How.) 
127. 

Federal:  La  Croix  v.  Sarrazin,  15  Fed.  489  (citizen  of 
France  need  not  allege  treaty  between  France  and  the 
United  States  regarding  trade-marks,  in  suit  against  citi- 
zen of  Louisiana  to  restrain  infringement). 
Nebraska:  Butschowski  v.  Brecks,  94  Neb.  532,  143  N.  W. 
923  (rights  of  nonresident  aliens  of  Prussia  to  inherit 
and  dispose  of  lands  of  resident). 


JUDICIAL  NOTICE  479 

United  States.  Judicial  notice  is  taken  of  international 
law  and  its  rules.— Hilton  v.  Guyot,  159  U.  S.  113;  The 
Paquette  Habana,  175  U.  S.  677  (rule  of  international  law 
exempting  fishing  vessels  from  capture). 

It  will  be  judicially  recognized  that  Canadian  citizens 
are  citizens  and  subjects  of  a  foreign  state,  for  the  purpose 
of  conferring  jurisdiction  upon  a  federal  court. — Lumley 
v.  Wabash  Ry.  Co.,  (C.  C.)  71  Fed.  21. 

DOMESTIC  LAWS,  TREATIES  AND  GOVERNMENT. 
In  General. 
South  Dakota.     Courts  "have  judicial  knowledge  of  the  sit- 
uation existing  in  the  state  with  reference  to  the  nomina- 
tion of  presidential  electors. — State  v.  Olsen,  30  S.  D.  57, 
137  N.  W.  561. 

Texas.  The  federal  courts  will  take  judicial  notice  of  the 
laws  of  every  state. — Edwards  v.  Smith,  (Tex.  Civ.  App.), 
137  S.  W.  1161. 

Utah.  Judicial  notice  will  be  taken  of  the  proceedings  of 
the  convention  which  framed  the  constitution. — State  v. 
Norman,  16  Utah  457,  52  P.  986. 

Washington.  Judicial  notice  will  be  taken  of  all  recorded 
facts  relating  to  the  adoption  of  an  amendment  to  the  con- 
stitution.—Gottstein   v.    Lister,   88   Wash.   462,   153    P.   595. 

Federal   Laws  and  Treaties. 

Courts  take  judicial  notice  of  the  general  laws  of  the 
VJnited  States: 

Idaho:     First  Nat.  Bank  v.  Walker,  27  Ida.  199,  148  P.  46 
(as  to  incorporation  of  national  banks). 
Kansas:      Hurst   v.   Dana,   86   Kan.   947,   122   P.   1041    (that 
the  Mississippi  river  and  navigable  waters  leading  into  it 
are  common  highway?). 

South  Dakota:  Ganow  v.  Ashton,  32  S.  D.  458,  143  N.  W. 
383. 

As  well  as  treaties  with  the  Indian  tribes: 
North  Dakota:     Kreuger  v.  Schultz,  6  N.  D.  310,  70  N.  W. 
269   (that  certain  lands  were  within  the  "Indian  country," 
and  of  the  date  when  the  Indian  right  of  occupancy  was 
terminated  by  treaty). 


480  JUDICIAL  NOTICE 

Oklahoma:  Gay  v.  Thomas,  5  Okl.  1,  46  P.  578  (that  there 
is  no  real  estate  in  the  Indian  reservations  subject  to  tax- 
ation). 

South  Dakota:  Peano  v.  Brennan,  20  S.  D.  242,  106  N.  W. 
409  (that  certain  territory  has  been  set  apart  for  Indians 
as  a  whole,  and  no  land  belongs  to  them  in  severalty). 

But  not  of  special  or  private  acts: 
New  Mexico:  Denver  &  Rio  G.  R.  Co.  v.  United  States, 
9  N.  M.  389,  54  P.  336  (granting  right  of  way  to  railroad). 
Oklahoma:  State  v.  Indian  Territory  Oil  Co.,  32  Okl.  607, 
123  P.  166  (approving  lease  upon  600,000  acres  of  land  in 
Osage  Nation). 

Where,  by  an  act  of  Congress,  the  statutes  of  another 
state,  or  the  laws  and  customs  of  an  Indian  tribe  were  put 
in  force,  judicial  notice  will  be  taken  thereof: 
Oklahoma:  Greenville  Nat.  Bank  v.  Evans-Snider-Buel 
Co.,  9  Okl.  353,  60  P.  249  (code  of  laws  of  territory  put  in 
force);  Scott  v.  Jacobs,  31  Okl.  109,  126  P.  780  (laws  of 
descent  and  distribution  of  the  Creek  nation). 
Texas:  Red  River  Nat.  Bank  v.  De  Berry,  47  Tex.  Civ. 
App.  96,  105  S.  W.  998  (laws  of  Arkansas  extended  over 
Indian  Territory). 

Utah.  Judicial  notice  will  be  taken  of  an  act  of  Congress 
ordering  the  unallotted  lands  of  an  Indian  reservation  re- 
stored to  the  public  domain. — Sowards  v.  Meagher,  37 
Utah  212,  108  P.  1112. 

Laws  of  Same  State. 
A  court  takes  judicial  notice  of  the  laws  of  its  own  state. 
— Schwerdtel  v.   Placer  County,    108   Cal.   589,   41   P.    448; 
Saum  v.  Dewey,  84  Kan.  811,  115  P.  570;  Johnson  v.  Grady, 
(Okl.),  150  P.  497. 

Arizona.  The  practice  of  assessing  patented  mining 
claims  by  name  is  a  practical  construction  of  the  statute 
and  will  be  noticed  by  the  courts.— Territory  v.  Copper 
Queen  Consol.  Min.  Co.,  13  Ariz.  198,  108  P.  960. 
California.  In  passing  upon  a  demurrer,  a  court  will,  if 
necessary,  take  judicial  notice  of  a  legislative  land  grant. 
—People  v.  Oakland  Water  Front  Co.,  118  Cal.  234,  50 
P.  305. 


JUDICIAL   NOTICE  481 

And  of  the  existence  of  an  evil  which  the  legislature  in 
framing  a  constitutional  amendment  endeavored  to  cor- 
rect.—Hilborn  v.  Nye,  15  Cal.  App.  298,  114  P.  801. 
Kansas.  Courts  will  take  judicial  notice  of  everything 
affecting  the  existence  and  validity  of  a  law  or  a  portion 
of  the  constitution.— Constitutional  Prohibitory  Amend- 
ment, 24  Kan.  700. 

South  Dakota.  The  courts  will  take  judicial  notice  of  all 
laws,  both  state  and  federal,  that  are  in  force  and  appli- 
cable within  the  jurisdiction. — Ganow  v.  Ashton,  32  S. 
D.  458,  143  N.  W.  383;  Yankton  Nat.  Bank.  v.  Benson,  33 
S.   D.  399,  146  N.  W.   582. 

Texas.  Special  statutes  will  not  be  judicially  noticed. — 
Galveston-Houston  Elec.  Ry.  Co.  v.  Stautz,  (Tex.  Civ.  App.), 
166  S.  W.  11. 

Legislative  Proceedings  and  Journals. 

Legislative  proceedings  and  journals  are  taken  judicial 
notice  of.— Topeka  v.  Gillett,  32  Kan.  431,  4  P.  800;  Cor- 
vallis  &  E.  R.  Co.  v.  Benson,  61  Or.  359,  121  P.  418;  Ritchie 
v.  Richards,  14  Utah  345,  47  P.  670. 

As  a  general  rule,  courts  will  take  judicial  notice  of  the 
contents  of  the  journals  and  other  records  of  legislative 
bodies,  required  to  be  kept  by  law,  which  may  in  any  man- 
ner affect  the  validity  or  the  meaning  and  proper  construc- 
tion of  an  act,  but  will  not  take  cognizance  of  any  fact 
that  is  without  legal  potency  to  affect  the  validity  of  the 
act,  or  to  explain  its  meaning  or  construction. — Division 
of  Howard  County,  15  Kan.  194;  Somers  v.  State,  3  S.  D. 
321,  58  N.  W.  804;  Ritchie  v.  Richards,  14  Utah  345,  47  P. 
670. 

Arkansas.  Courts  in  construing  the  legality  of  legislative 
acts  have  judicial  knowledge  of  the  recitals  and  records 
of  the  journals  of  both  branches  of  the  general  assembly. 
— Jobe  v.  Urquhart,  102  Ark.  470,  143  S.  W.  121. 
New  Mexico.  The  court  will  take  judicial  notice  of  the 
journal  of  the  senate  even  though  not  on  file  in  the  office 
of  the  secretary  of  state. — Earnest  v.  Sargent,  20  N.  M. 
427,  150  P.  1018. 


482  JUDICIAL  NOTICE 

Oregon.  In  like  manner  municipal  courts  will  take  judi- 
cial notice  of  the  ordinances  of  the  municipality  and  of 
such  journals  and  records  of  the  law-making  body  as  affect 
their  validity,  meaning  and  construction. — City  of  Port- 
land v.  Yick,  44  Or.  439,  75  P.  706. 

Municipal  Corporations  and  Proceedings. 

Municipal  ordinances  will  not  be  judicially  noticed. — 
Metteer  v.  Smith,  156  Cal.  572,  105  P.  735;  Garland  v.  Den- 
ver, 11  Colo.  534,  19  P.  460;  Sullivan  v.  Duratt,  83  Kan. 
799,  109  P.  777;  Woodruff  v.  Deshazo,  (Tex.  Civ.  App.), 
181  S.  W.  250;  but  see  Tilton  v.  Russek,  171  Cal.  731,  154 
P.  860. 

The  class  to  which  a  city  belongs  and  the  laws  by  which 
it  is  governed,  and  its  powers,  will  be  judicially  noticed. 
— Olmstead  v.  City  of  Red  Cloud,  86  Neb.  528,  125  N.  W. 
1101;  State  v.  Superior  Court,  62  Wash.  96,  113  P.  576. 
California.  An  amendment  of  a  city  charter  having  the 
effect  of  a  law  will  be  noticed. — Clark  v.  City  of  Los  An- 
geles, 160  Cal.  30,  116  P.  722. 

Kansas.  In  a  prosecution  for  violation  of  a  municipal  or- 
dinance its  existence  and  substance  will  be  judicially  no- 
ticed, but  the  introduction  of  the  ordinance  book  in  evi- 
dence was  immaterial. — Downing  v.  Miltonvale,  36  Kan. 
740,  14  P.  281. 

That  a  city  of  the  state  is  of  the  first  class,  is  noticed. 
—City  of  Ft.  Scott  v.  Elliott,  68  Kan.  805,  74  P.  609. 
Oregon.     A  city  charter  which  is  the  result  of  a  special 
local  election  will  not  be  judicially  noticed  unless  pleaded. 
— Birnie  v.  City  of  La  Grange,  78  Or.  531,  153  P.  415. 

But  where  the  charter  is  a  public  law  of  the  state  it  will 
be  noticed.— Naylor  v.  McColloch,  54  Or.  305,  103  P.  68. 

Laws  of  Other  States. 

The  laws  of  sister  states  will  not  be  judicially  noticed. 
—Ryan  v.  North  Alaska  Salmon  Co.,  153  Cal.  438,  95  P.  862; 
McKnight  v.  Oregon  Short  Line  Co.,  33  Mont.  40,  82  P.  661; 
Loyal  Americans  v.  McClanahan,  50  Tex.  Civ.  App.  256, 
109  S.  W.  973. 


JUDICIAL  NOTICE  483 

Arkansas:  Kirby's  Digest,  §  7823,  provides  that  the  courts 
shall  take  notice  of  the  laws  of  other  states. — Ellis  v. 
Terrell,  109  Ark.  69,  158  S.  W.  957. 

But  this  does  not  apply  to  private  statutes. — Miller  v. 
Johnston,  71  Ark.  177,  72  S.  W.  371. 

Kansas.  Kansas  courts  will  not  take  judicial  notice  of 
the  common  law  of  another  state,  but  will  of  the  common 
law  of  Kansas  and  of  what  it  would  be  but  for  the  stat- 
utes, or  written  law,  and  for  this  purpose  may  take  notice 
of  all  judicial  decisions  of  this  country  and  other  coun- 
tries which  have  adopted  the  common  law  of  England, 
but  for  the  purpose  that  the  courts  of  Kansas  shall  know 
as  a  fact  in  a  particular  case  what  the  common  law  of 
some  other  state  is,  such  law  must  be  proved. — St.  Louis 
&  S.  F.  Ry.  Co.  v.  Weaver,  35  Kan.  412,  11  P.  408. 

Law  of  another  state  cannot  be  judicially  known  except 
for  the  purpose  of  construing  domestic  laws. — Brewing  Co. 
v.  Gimber,  67  Kan.  834,  72  P.  859;  Missouri,  K.  &  T.  Ry. 
Co.  v.  Sealy,  78  Kan.  758,  99  P.  230. 

North  Dakota.  An  admission  that  a  given  section  of  a 
statute  of  another  state  reads  in  a  certain  manner  does 
not  dispense  with  proof  that  it  was  in  effect  on  a  particu- 
lar date,  or  that  it  was  unamended,  or  was  the  law  at  a 
specified  time.— Wilson  v.  Kryger,  29  N.  D.  28.  149  N. 
W.  721. 

Texas.  Where  the  statutes  of  another  state  were  put  in 
force  in  Indian  Territory  by  an  act  of  Congress,  the  courts 
of  Texas  are  bound  to  take  judicial  notice  of  such  statutes. 
— Red  River  Nat.  Bank  v.  De  Berry,  47  Tex.  Civ.  App.  96, 
105  S.  W.  998. 

Judicial  cognizance  will  be  taken  of  an  act  of  Congress 
organizing  a  territory,  but  not  of  laws  passed  by  its  legis- 
lature, and  if  the  common  law  is  the  rule  of  decision  in 
such  territory,  judicial  notice  will  not  be  taken  of  the  con- 
struction placed  upon  it  by  the  supreme  court  of  such 
territory.— El  Paso  &  S.  W.  Ry.  Co.  v.  Smith,  50  Tex.  Civ. 
App.  10,  108  S.  W.  988. 

Utah.  Under  section  1898,  Rev.  St.,  the  safer  rule  is  to 
require  proof  of  the  laws  of  a  sister  state. — Hunt  v.  Mon- 
roe, 32  Utah  428,  91  P.  269. 


484  JUDICIAL  NOTICE 

Washington.  Under  the  constitutional  provision  which 
requires  full  faith  and  credit  to  be  given  to  public  acts, 
records  and  judicial  proceedings  of  every  other  state,  the 
courts  of  Washington  will  take  judicial  notice  of  the  local 
laws  of  the  state  from  which  the  record  comes. — Trow- 
bridge v.  Spinning,  23  Wash.  48,  62  P.  125. 

Judicial  notice  is  taken  of  laws  of  another  state  confer- 
ring jurisdiction  upon  a  certain  court. — Dormitzer  v.  Ger- 
man Sav.  &  L.  Soc,  23  Wash.  132,  62  P.  862. 

Governmental  and  Administrative  Matters. 
Judicial  notice  will  be  taken  of  governmental  and  ad- 
ministrative acts,  powers,  functions  and  duties: 
California:     Foss   v.    Johnstone,    158   Cal.    119,    110   P.   294 
(proceedings  of  the  executive  officers  of  the  United  States 
and  of  the  state). 

Colorado:  Schwartz  v.  People,  46  Colo.  239,  104  P.  92 
(record   of   constitutional   convention). 

Idaho:  Stein  v.  Morrison,  9  Ida.  426,  75  P.  246  (constitu- 
tional and  statutory  methods  provided  for  raising  revenue 
and  augmenting  public  funds,  but  not  of  the  amount  so 
raised  and  received). 

Montana:     Johnson  v.  Lincoln  County,   50   Mont.   253,   146 
P.  47   (rules  of  the  department  of  the  interior). 
New  Mexico:     United  States  v.  Gumm,  9  N.  M.  611,  58  P. 
398   (same). 

Oklahoma:     Peters    v.    United    States,    2    Okl.    116.    33    P.  " 
1031  (rules  of  the  land  department). 

Oregon:  Kay  v.  City  of  Portland,  79  Or.  146,  154  P.  750 
(rules  of  civil  service  commission  of  a  city  not  noticed). 
South  Dakota:  House  v.  Chicago  &  N.  W.  Ry.  Co.,  30 
S.  D.  321,  138  N.  W.  809  (powers  of  Interstate  Commerce 
Commission;  but  not  whether  it  has  denned  the  term 
"baggage,"  or  if  so,  of  the  definition). 

Texas:  Watrous  v.  McGrew,  16  Tex.  506  (matters  relat- 
ing to  government  and  administration) ;  Harrold  v.  Arr- 
ington,  64  Tex.  233  (claiming  certain  territory  as  part  of 
the  state  and  exercising  acts  of  control  over  it) ;  Thomp- 
son v.  San  Antonio  &  A.  O.  Ry.  Co.,  11  Tex.  Civ.  App.  145, 
32  S.  W.  427  (acts  of  railroad  commission  not  noticed). 


JUDICIAL  NOTICE  485 

Washington:  Whitney  v.  Spratt,  25  Wash.  62,  64  P.  919 
(rules  of  land  department). 

Political  Subdivisions  and  Bodies. 
The  courts  will  take  judicial  notice  of  matters  relating 
to  political  subdivisions  and  bodies: 

Arizona:     Maricopa  County  v.  Burnett,  8  Ariz.  242,  71  P. 
908    (that   not   all   the   county   seats   are   situated   in   the 
largest  towns  and  centers  of  population). 
Arkansas:     Stephens  v.  Stephens,  108  Ark.  53,  156  S.  W. 
837    (government  surveys). 

California:  Bituminous  Lime-Rock  P.  &  I.  Co.  v.  Fulton, 
(Cal.),  33  P.  1117  (that  a  large  city  is  a  municipal  corpo- 
ration under  and  by  virtue  of  several  statutes  passed  for 
the  purpose  of  organizing  it  as  such  and  extending  its 
limits,  adding  to  and  changing  the  powers  of  its  municipal 
officers). 

Kansas:  Carey  v.  Reeves,  46  Kan.  571,  26  P.  951  (bound- 
aries of  the  state) ;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Paxton, 
75  Kan.  197,  88  P.  1082  (county  boundaries). 
North  Dakota:  State  v.  Thompson,  21  N.  D.  426,  131  N. 
W.  231  (municipalities  operating  under  commission  form; 
of  their  elections  of  officers,  and  that  at  a  coming  election 
many  cities  operating  under  it  will  choose  officers). 
Oregon:  Micelli  v.  Andrus,  61  Or.  78,  120  P.  737  (govern- 
ment surveys). 

Texas:  Ogden  v.  Lund,  11  Tex.  688  (boundaries  of  the 
United  States);  Connor  v.  State,  23  Tex.  Civ.  App.  452, 
5  S.  W.  189  (boundaries  of  the  state). 
Wyoming:  State  v.  Schnitger,  16  Wyo.  479,  95  P.  698 
(organization  of  state  and  counties,  and  of  the  members 
of  the  legislature  and  terms  of  senators). 

Officers,  Their  Powers,  Duties  and  Acts. 
Courts  will  take  judicial  notice  of  officers  in  the  state, 
and  of  their  powers,  duties  and  acts: 

Arkansas:  Kaufman  v.  Stone,  25  Ark.  336  (appointments 
to  office). 

California:  Alderson  v.  Bell,  9  Cal.  315  (official  signa- 
tures); Yount  v.  Howell,  14  Cal.  465  (signature  of  the 
President  of  the  United  States;  great  seal  of  the  nation); 


486  JUDICIAL   NOTICE 

Wetherbee  v.  Dunn,  32  Cal.  106  (who  fill  various  county 
offices;  official  signatures);  Himmelman  v.  Hoadley,  44 
Cal.  213,  (genuineness  of  signatures  of  county  officers) ; 
Pardee  v.  Schanzlin,  3  Cal.  App.  597,  86  P.  812  (seals); 
Poheim  v.  Meyers,  9  Cal.  App.  31,  98  P.  65  (proclamations) ; 
Kimball  v.  McKee,  149  Cal.  436,  86  P.  1089  (preliminaries 
to  sales  of  public  lands). 

Colorado:  Arnold  v.  Hilts,  61  Colo.  8,  155  P.  316  (failure 
to  comply  with  an  order  to  file  an  official  bond). 

Montana:  State  v.  Board  of  Com'rs,  34  Mont.  426,  87  P. 
450  (regularity  of  the  adoption  of  a  constitutional  amend- 
ment) ;  State  v.  Board  of  Canvassers,  32  Mont.  13,  79  P. 
402  (that  certain  persons  were  not  on  a  certain  day  attor- 
ney general  and  state  treasurer,  but  that  their  successors 
had  been  elected,  qualified  and  inducted  into  office). 

Nebraska:  State  ex  rel.  Thayer  v.  Boyd,  34  Neb.  435,  51 
N.  W.  964  (that  relator  voluntarily  and  on  his  own  motion 
surrendered  to  respondent  the  office  of  governor,  and  that 
the  latter  is   discharging  the  duties  thereof). 

Oklahoma:  Aultman  Taylor  M.  Co.  v.  Burchett,  15  Okl. 
490,  83  P.  719  (terms  of  office  of  public  officers,  when  fixed 
by  statute). 

Oregon:  Bennett  Trust  Co.  v.  Sengstacken,  58  Or.  3J?3, 
113  P.  863  (that  an  act  was  presented  to  the  governor  and 
not  returned  by  him  to  the  house  within  five  days) ,  Butts 
v.  Purdy,  63  Or.  150,  125  P.  313  (that  a  notary  public  is 
a  state  officer;  his  accession  to  office,  seal  and  continuance 
in  office). 

Texas:  Gates  v.  Johnson  County,  36  Tex.  144  (officers 
and  terms);  Alford  v.  State,  8  Tex.  App.  545  (sami;); 
Goodwin  v.  Harrison,  28  Tex.  Civ.  App.  7,  66  S.  W.  SOS 
(clerk  of  a  court  of  another  county,  and  his  signature); 
Yarbrough  v.  DeMartin,  28  Tex.  Civ.  App.  276,  67  S.  W 
177  (that  a  clerk  certifying  thereto  was  legal  custodian 
of  probate  records);  Missouri,  K.  &  T.  Ry.  Co.  v.  Mc- 
Ilhaney,  (Tex.  Civ.  App.),  (proclamation  of  governor 
as  to  quarantine). 


JUDICIAL  NOTICE  487 

Utah:  State  v.  Candland,  36  Utah,  406,  104  P.  285  (esti- 
mated income  from  university  lands  for  certain  years  as 
obtained  from  report   of  regents). 

Arkansas.  The  acceptance  of  the  office  of  deputy  sheriff 
is  not  judicially  known. — Bank  v.  Curran,  10  Ark.  142. 
South  Dakota.  Courts  will  take  judicial  notice  that  on 
December  1st  taxes  for  the  current  year  have  been 
assessed,  levied  and  extended  against  real  estate  subject 
to  taxation.— Hohn  v.  Bidwell,  27  S.  D.  249,  130  N.  W.  837. 
Washington.  The  court  will  take  judicial  notice  of  the 
practice  of  the  land  department  in  administering  oaths  in 
all  hearings  pertaining  to  state  lands. — Crouch  v.  Ross,  S3 
Wash.  73,  145  P.  87. 

Matters  Relating  to  Courts. 
Judicial   notice   will   be   taken   of   the   jurisdiction,   and 
other  matters  pertaining  to  courts  of  the  state: 

California:  People  v.  Ebanks,  120  Cal.  626,  52  P.  1078 
(that  a  judge  of  the  superior  court  who  pronounced  an 
original  judgment  had  ceased  to  be  judge  when  an  order 
fixing  date  of  execution  was  made) ;  Gay  v.  Gay,  146  Cal. 
237,  79  P.  885  (that  a  mandamus  suit  was  pending  to  com- 
pel a  judge  to  settle  a  bill  of  exceptions  in  a  suit  between 
the  same  parties). 

Colorado:  Cooper  v.  American  Cent.  Ins.  Co.,  3  Colo.  318 
(terras  of  district  court,  by  Supreme  Court) ;  Arnold  v. 
Hilts,  61  Colo.  8,  155  P.  316  (that  a  bond  ordered  was  not 
filed). 

Kansas:  Scruton  v.  Hall,  6  Kan.  App.  714,  50  P.  964  (com- 
mencement and  expiration  of  terms  of  court). 

Nebraska:  Specklemeyer  v.  Dailey,  23  Neb.  101,  36  N. 
W.  556  (that  circuit  courts  of  a  sister  state  are  courts  of 
general  jurisdiction). 

New  Mexico:     Friday  v.  Santa  Fe  Cent.  Ry.  Co.,  16  N.  M. 
434,  120  P.  316   (counties  comprising  a  judicial  district). 
Oklahoma:     Nolan   v.    St.   Louis   &    S.   F.   R.   Co.,    19    Okl. 
51,  91  P.   1128    (that  one  appearing  as   attorney  is  or  is 
not  duly  licensed). 


488  JUDICIAL  NOTICE 

Oregon:  State  v.  Richardson,  48  Or.  309,  85  P.  225  (facts 
acquired  at  a  prior  hearing). 

Texas:  Texas  L.  &  C.  Co.  v.  Hemphill  County,  (Tex.  Civ. 
App.),  61  S.  W.  333  (jurisdiction  of  a  court,  determined 
by  taking  notice  of  the  rate  of  taxation  fixed  by  law  in 
order  to  ascertain  the  amount  of  taxes  due  in  controversy) ; 
Yarbrough  v.  De  Martin,  28  Tex.  Civ.  App.  276,  67  S.  W. 
177  (that  district  courts  exercised  probate  jurisdiction  at 
a  certain  time). 

Wyoming:  Board  of  Com'rs  v.  Shaffner,  10  Wyo.  181,  68 
P.  14  (existence,  terms,  place  of  sitting,  judges  and  clerks) ; 
Big  Laramie  River,  In  re,  23  Wyo.  75,  147  P.  169   (terms). 

A  court  will  take  judicial  notice  of  its  own  records  and 
decisions. — Savage  v.  State,  (Tex.  Civ.  App.),  138  S.  W. 
211;  Bank  &  T.  Co.  v.  Davis,  (Tex.  Civ.  App.),  149  S.  W. 
290;  Warren  v.  Robinson,  21  Utah  429,  61  P.  28. 

But  not  in  other  cases  pending  even  between  the  same 
parties.— Murphy  v.  Citizens  Bank,  82  Ark.  131,  100  S.  W. 
894;  Lownsdale  v.  Grays  Harbor  B.  Co.,  54  Wash.  542, 
103  P.  833. 

The  supre  ^  court  will  not  take  judicial  notice  of  the 
rules  of  the  inferior  courts. — Sweeney  v.  Stanford,  60  Cal. 
362;  Kindel  v.  Le  Bert,  23  Colo.  385,  48  P.  641;  Powell  v. 
Lumber  Co.,  12  Idaho  723,  88  P.  97;  Bowen  v.  Webb,  34 
Mont.  61,  85  P.  739;  Dunn  v.  Bozarth,  59  Neb.  244,  80  N. 
W.  811;  Stivers  v.  Byrkett,  56  Or.  565,  109  P.  386. 
Arizona.  The  supreme  court  will  not  take  judicial  notice 
of  an  attorney  of  the  district  court,  where  by  statute  a 
lawyer  may  be  an  officer  of  the  district  court,  and  not  of 
the  supreme  court. — Clark  v.  Morrison,  5  Ariz.  349,  52  P. 
985. 

California.  Courts  have  judicial  knowledge  of  the  election 
of  a  judge  of  a  certain  court.— Wyatt  v.  Arnot,  7  Cal.  App. 
221,  94  P.  86. 

Oklahoma.  The  supreme  court  judicially  knows  who  are 
the  judges  of  the  courts  of  record  of  the  state,  but  has  no 
knowledge  of  special  judges.— Apple  v.  Ellis,  (Okl.),  150 
P.  1057. 


JUDICIAL   NOTICE  489 

South  Dakota.  The  supreme  court  will  take  judicial  no- 
tice of  the  organization,  jurisdiction  and  judges  of  the  in- 
ferior courts  within  its  jurisdiction,  established  under  gen- 
eral laws,  and  that  the  jurisdiction  of  the  county  court  of 
Moody  county  is  limited  to  actions  in  which  the  debt, 
damage,  claim  or  value  of  the  property  involved  does  not 
exceed  $500.— Nelson  v.  Ladd,  4  S.  D.  1,  54  N.  W.  809. 

IMPORTANT  CORPORATIONS. 

Prominent  facts  regarding  important  corporations  are 
judicially  noticed: 

Kansas:  Patterson  v.  Missouri  Pac.  Ry.  Co.,  77  Kan.  236, 
94  P.  138  (route  of  railroad);  Worden  &  Son  v.  Cole,  74 
Kan.  226,  86  P.  464  (location  of  road). 
Montana:  Brian  v.  Oregon  S.  L.  Co.,  40  Mont.  109,  105 
P.  489  (that  there  is  no  transcontinental  line  under  one 
management  in  this  country). 

New  Mexico:  Friday  v.  Santa  Fe  Cent.  Ry.  Co.,  16  N.  M. 
434,  120  P.  316  (county  in  which  known  railroad  stations 
are  located,  or  where  points  on  a  railroad  line  at  known 
distances  from  such  stations  are  located). 
Oregon:  State  v.  Portland  Gen.  Elec.  Co.,  52  Or.  502,  98 
P.  160   (canals). 

Judicial  notice  is  not  taken  of  railroad  stations  or  de- 
pots, or  the  scenic  beauty  of  a  railroad  line. — St.  Louis 
&  S.  F.  R.  Co.  v.  Williams,  25  Okl.  662,  107  P.  428;  Tex- 
arkana  &  Ft.  S.  Ry.  Co.  v.  Schevoigt,  (Tex.  Civ.  App.),  181 
S.  W.  802. 

Kansas.  The  supreme  court  will  take  judicial  notice  of 
the  permanent  location  of  an  important  line  of  railroad 
which  traverses  the  state  upon  a  firmly  established  route, 
and  that  certain  lands  conveyed  to  the  railway  company 
by  patent  from  the  state  by  authority  of  an  act  of  Con- 
gress are  within  the  limits  of  such  permanent  location  and 
a  part  of  the  lands  granted  to  the  railway  company. — L.  P. 
Worden  &  Son  v.  Cole,  74  Kan.  226,  86  P.  464. 
Texas.  While  it  is  a  matter  of  common  knowledge  that 
the  business  of  operating  electric  street  railways  is  gen- 
erally carried  on  by  corporations,  it  cannot  be  judicially 
known   thai    no  others  than  corporations  are  carrying  on 


490  JUDICIAL  NOTICE 

such  business. — Beaumont  Traction  Co.  v.  State,  57  Tex. 
Civ.  App.  605,  122  S.  W.  615. 

OCCUPATIONS. 

The  management  and  conduct  of  many  occupations  are 
judicially  noticed: 

California:  Prince  v.  Lamb,  128  Cal.  120,  60  P.  689  (that 
an  advance  of  $50  is  an  insufficient  consideration  to  en- 
title the  one  advancing  the  same  to.  a  half  interest  in  the 
results  of  mineral  discoveries  after  a  trip  to  Alaska) ; 
Edson  v.  Southern  Pac.  R.  Co.,  144  Cal.  182,  77  P.  894 
(that  comparatively  few  of  the  public  exercise  the  priv- 
ileges of  unlimited  tickets) ;  Abbey  L.  &  I.  Co.  v.  San 
Mateo  County,  167  Cal.  434,  139  P.  1068  (the  usual  methods 
of  operating  a  crematory  for  human  bodies). 
Kansas:  Southern  Pac.  Co.  v.  Larabee,  89  Kan.  608,  132 
P.  205  (that  when  freight  is  carried  by  connecting  carriers 
the  charges  are  usually  collected  by  the  final  carrier). 
Oregon:  Higgins  &  Co.  v.  Torvick,  55  Or.  274,  106  P.  22 
(that  potatoes  are  subject  to  decay). 

South  Dakota:  Grant  v.  Powers  D.  G.  Co.,  23  S.  D.  195, 
121  N.  W.  95  (that  giving  a  chattel  mortgage  upon  a  whole 
stock  of  merchandise  to  secure  a  previous  indebtedness 
is  entirely  out  of  the  ordinary  course  of  business). 
Washington:  Thorgrimson  v.  Northern  Pac.  R.  Co.,  64 
Wash.  500,  117  P.  406  (impossibility  of  operating  locomo- 
tives with  coal  or  wood  without  throwing  some  sparks). 

CUSTOMS    AND    USAGES. 

Well  established  customs  and  usages  are  judicially  no- 
ticed: 

Arizona:  Clough  v.  Wing,  2  Ariz.  371,  17  P.  453  ("local 
customs,  laws,  and  decisions  of  courts,"  as  to  the  use  of 
water). 

Oregon:     Francis  v.  Mutual  Life  Ins.  Co.,  55  Or.  280,  106 
P.  323   (custom  of  life  insurance  companies  of  forwarding 
policy  to  a  resident  agent  for  delivery). 
Texas:     Sims  v.  Sealy,   53  Tex.  Civ.  App.   518,   116   S.  W. 
630  (that  in  making  conveyances  of  lands,  especially  after 


JUDICIAL   NOTICE  491 

location  of  certificate  and  before  patent,  instruments  in 
the  form  of  powers  of  attorney  were  used). 
Washington:  Bernard  v.  Benson,  58  Wash.  191,  108  P. 
439  (custom  of  recording  contract  for  sale  of  real  prop- 
erty) ;  Prince  v.  Prince,  64  Wash.  552,  117  P.  255  (custom 
of  husbands  and  wives  to  make  mutual  wills  for  disposi- 
tion of  community  estate). 

Colorado.  Judicial  notice  is  not  taken  of  the  customs  and 
usages  of  mining  districts. — Sullivan  v.  Hense,  2  Colo.  424. 
Kansas.  The  courts  judicially  know  that  no  general  cus- 
tom prevails  throughout  the  state  for  the  landlord  to  pay 
water  rent  furnished  the  demised  premises  in  the  absence 
of  an  agreement. — Atkinson  v.  Kirkpatrick,  90  Kan.  515, 
135   P.   579. 

Texas.  It  is  a  part  of  the  history  of  the  country  and  a 
fact  to  be  judicially  noticed  that  in  making  conveyances 
of  land,  especially  after  location  of  the  certificate  and  be- 
fore the  issuance  of  a  patent,  instruments  in  the  form  of 
powers  of  attorney  were  used. — Sims  v.  Sealy,  53  Tex.  Civ. 
App.  518,  116  S.  W.  630. 

HISTORICAL,    STATISTICAL    AND    GEOGRAPHICAL 
FACTS. 

Judicial  notice  is  taken  of  matters  of  historical  and 
statistical  facts  as  are  universally  known  and  accepted: 
Kansas:  La  Rue  v.  Kansas  Mutual  Life  Ins.  Co.,  68  Kan. 
539,  75  P.  494  (that  by  the  treaty  of  Paris  the  Philippine 
Islands  became  part  of  the  territory  of  the  United  States, 
and  after  that  time  were  in  insurrection  against  this  gov- 
ernment, and  that  such  insurrection  was  not  ended,  as  to 
the  island  of  Mindanao,  in  1902). 

Tex^s:  Flores  v.  Hovel,  (Tex.  Civ.  App.),  125  S.  W.  606 
(facts  relating  to  government  of  province  of  Texas  in 
1798). 

Utah:  Hilton  v.  Roylance,  25  Utah  129,  69  P.  660  (creeds 
and  doctrines  of  the  Mormon  church). 

The  standard  mortality  tables  are  judicially  noticed. — 
Valente  v.  Sierra  Ry.  Co.,  151  Cal.  534,  91  P.  481;  Froem- 
ing  v.   Stockton    Elec.    R.   Co.,    171   Cal.   401,    153    P.   712; 


492  JUDICIAL  NOTICE 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Ryan,  62  Kan.  682,  64  P. 
603;  Stephens  v.  Elliott,  36  Mont.  92,  92  P.  45;  Ruehl  v. 
Lidgerwood  R.  Tel.  Co.,  23  N.  D.  6,  135  N.  W.  793;  White 
v.  Southern  Kansas  Ry.  Co.,  (Tex.  Civ.  App.),  146  S.  W. 
692;    Suell  v.  Jones,  49  Wash.  582,  96  P.  4. 

Facts  relating  to  population  and   census   are  judicially 
noticed: 

California:  People  v.  Williams,  64  Cal.  87,  27  P.  939  (pop- 
ulation of  county). 

Colorado:  Constitutionality  of  Senate  Bill,  In  re,  21  Colo. 
38,  39  P.  522  (that  there  is  only  one  city  in  the  state  hav- 
ing a  population  of  100,000,  and  no  prospects  of  any  other 
for  a  considerable  time). 

Oregon:  Stratton  v.  City  of  Oregon  City,  35  Or.  409,  60 
P.  905  (number  of  inhabitants  of  a  county). 
Washington:  Times  Printing  Co.  v.  Star  Pub.  Co.,  51 
Wash.  667,  99  P.  1040  (population  of  city  and  approximate 
rate  of  increase  therein) ;  State  v.  Brooks,  58  Wash.  648, 
109  P.  211   (population  of  city). 

Notice  is  taken  by  the  courts  of  matters  of  geographi- 
cal knowledge: 

Arkansas:  Scott  v.  Dunckel  B.  &  L."  Co.,  106  Ark.  83,  152 
S.  W.  1025  (that  a  certain  river  forms  the  boundary  line 
between   two   counties). 

California:  Bank  of  Lemoore  v.  Fulgham,  151  Cal.  234, 
90  P.  936  (system  of  surveys  in  state). 

Idaho:  Shaw  v.  Martin,  20  Ida.  108,  117  P.  853  (that  a 
city  is  located  in  a  certain  county). 

Kansas:  Hurst  v.  Dana,  86  Kan.  947,  122  P.  1041  (size, 
length  and  drainage  area  of  a  large  river). 

Nebraska:  Bower  v.  Chicago  &  N.  W.  R.  Co.,  96  Neb.  419, 
148  N.  W.  145  (that  the  Black  Hills  are  in  South  Dakota, 
and  that  a  certain  railroad  has  its  terminus  in  a  certain 
town  there). 

Texas.  It  is  a  historical  fact  to  be  judicially  noticed  that 
in  making  conveyances  of  land,  especially  after  location 
of  the  certificate  and  before  the  issuance  of  a  patent,  in- 


JUDICIAL  NOTICE  493 

struments  in  the  form  of  powers  of  attorney  were  used. 
—Sims  v.  Sealy,  53  Tex.  Civ.  App.  518,  116  S.  W.  630. 
Washington.  Judicial  notice  may  be  taken  of  the  relative 
locations  of  cities  or  towns  in  the  state,  but  not  of  the 
existence  or  nonexistence  of  banking  institutions  therein. 
—Bartholomew  v.  First  Nat.  Bank,  18  Wash.  683,  52  P.  239. 

MEANINGS    AND    PRONUNCIATION    OF    WORDS    AND 
ABBREVIATIONS. 

The  court  takes  judicial  notice  of  the  ordinary  meanings 
which  words  have  attached  to  them  by  general  usage: 
California:     Edwards  v.  San  Jose  P.  &  P.  Co.,  99  Cal.  431, 
34  P.  128  (the  word  "sack,"  as  used  in  relation  to  election 
corruption  funds). 

Colorado:     Board   of  Com'rs   v.  Hider,    47    Colo.    443,    107 
P.  1068   ("O.  K."). 

Kansas:     State  v.  Baldwin,  36  Kan.  1,  12  P.  318   ("anaes- 
thetic, chloroform  and  poison"). 

Oregon:     Martin  v.  Eagle  Creek  Dev.  Co.,  41  Or.  448,  69 
P.  216  (unusual  meanings  are  not  judicially  noticed). 
Texas:     Barron  v.  San  Angelo  Nat.  Bank,  (Tex.  Civ.  App.), 
138  S.  W.  142  ("yearlings"). 

The  court  takes  notice  of  abbreviations  in  common  use. — 
Empire  Mill  Co.  v.  District  Court,  27  Ida.  383,  149  P.  499; 
Power  v.  Bowdle,  3  N.  D.  107,  54  N.  W.  404;  Andrews  v. 
Wynn,  4  S.  D.  40,  54  N.  W.  1047;  Ellis  v.  Park,  8  Tex.  205. 
California.  Under  statutory  provision  that  courts  shall 
take  judicial  notice  of  the  "true  significance  of  all  English 
words  and  phrases,"  the  court  will  judicially  know  an  auto- 
mobile and  its  characteristics,  and  the  consequence  of  its 
use.— Berry,  ex  parte,  147  Cal.  523,  82  P.  44. 
Texas.  The  phrase  "colored  men"  has  no  legal,  technical 
signification  of  which  the  courts  will  take  judicial  notice. — 
Pauska  v.  Dans,  31  Tex.  67. 

The  court  does  not  judicially  know  that  the  words 
"Selia"  and  "Celia"  are  idem  sonans  in  the  Spanish  lan- 
guage.— Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Sanchez,  (Tex. 
Civ.  App.),  65  S.  W.  893. 


494  JUDICIAL  NOTICE 

MATTERS  OF  ART,  SKILL  AND  SCIENCE. 

Courts  take  judicial  notice  of  matters  of  art,  skill  and 
science: 

California:  Eichelberger  v.  Mills  L.  &  W.  Co.,  9  Cal.  App. 
628,  100  P.  117  (the  tides);  Union  Const.  Co.  v.  Western 
Union  Tel.  Co.,  163  Cal.  298,  125  P.  242  (discoveries  and 
inventions  such  as  the  telephone). 

Nevada:  Richardson  v.  National  Ore,  P.  &  R.  Co.,  34 
Nev.  455,  124  P.  779  (that  the  process  of  crushing,  amal- 
gamating and  cyaniding  ores  will  not  effect  an  extraction 
of  100  per  cent,  of  the  metallic  content). 

North  Dakota:  Wylds  v.  Patterson,  31  N.  D.  282,  153  N. 
W.  630  (whether  a  mathematical  computation  would  es- 
tablish the  fact  that  a  man  standing  on  a  roof  would  be 
within  sight  of  a  person  standing  in  the  street). 
Texas:  Houston  &  T.  C.  R.  Co.  v.  Shepard,  54  Tex.  Civ. 
App.  596,  118  S.  W.  596  (of  the  accuracy  of  X-ray  photo- 
graphs of  the  bones);  Walker  v.  Terrell,  (Tex.  Civ.  App.), 
189  S.  W.  75  (that  there  is  a  difference  of  four  minutes  of 
time  for  every  degree  of  longitude). 

In  a  proceeding  to  recover  on  a  note  and  to  foreclose 
a  chattel  mortgage,  the  court  will  fix  a  reasonable  attor- 
ney's fee,  no  evidence  on  that  point  being  necessary,  as 
the  court  is  as  competent  to  judge  what  is  a  reasonable 
attorney's  fee  as  is  the  ordinary  witness  who  might  be 
called.— Pearce  v.  Allbright,  12  N.  M.  202,  76  P.  286;  Carr 
v.  Bonthius,  79  Wash.  282,  140  P.  338. 
Montana.  Courts  will  not  take  judicial  notice  that  the 
destruction  of  one  eye  necessarily  injuriously  affects  the 
sight  of  the  other. — Gordon  v.  Northern  Pac.  R.  Co.,  39 
Mont.    571,    104   P.   679. 

TIME. 

South  Dakota.     Courts  will  take  judicial  notice  of  the  day 
of  the  week  on  which  a  certain  day  of  the  month  falls. 
—Crisp  v.  Gochnour,  34  S.  D.  364,  148  N.  W.  624. 
Texas.     Time    is    judicially    noticed.— Walker    v.    Terrell, 
(Tex.  Civ.  App.),  189  S.  W.  75. 


JUDICIAL  NOTICE  495 

Utah.  Courts  cannot  take  judicial  notice  of  what  system 
of  time  is  in  general  use  in  a  city  outside  of  its  general 
jurisdiction.— Salt  Lake  City  v.  Robinson,  39  Utah  260,  116 
P.   442. 

THINGS   COMMONLY    KNOWN. 
The   qualities   and   properties   of   matter,   and   things   in 
common  knowledge  are  judicially  noticed: 
Arkansas:     Webb   v.   Bowden,    (Ark.),   187   S.   W.   461. 
California:     Grogan   v.    Chaffee,    156   Cal.    611,    105   P.   745 
(that  other  persons  may  and  do  manufacture  pure  olive 
oil  in  considerable  quantities);   Miller  &  Lux  v.  Enterprise 
Canal  &  Land  Co.,  169  Cal.  415,  147  P.  567   (operation  of 
the  law  of  gravitation  as  to  the  flow  of  water) ;   Federal 
Const.  Co.  v.  Wold,  30  Cal.  App.   360,  158  P.  340. 
Colorado:     Denver  Tramway  Co.  v.   Brown,   57   Colo.   484, 
143  P.  364  (use  of  street  car  tracks  by  children) ;  Atkinson 
v.    Colorado   Title   &   Trust   Co.,    59    Colo.   528,    151   P.   457 
(that   the  basement  walls  and  foundations   of  an  uncom- 
pleted structure,  subject  to  liens,  cannot  be  removed  and 
retain  any  value). 

Montana:  Meehan  v.  Great  Northern  Ry.  Co.,  43  Mont. 
72,  114  P.  781  (that  the  length  of  the  rays  cast  by  arc  light 
is   much  more  than  300   feet). 

Nebraska:  Redell  v.  Moores,  63  Neb.  219,  88  N.  W.  243. 
Oregon:  Holmberg  v.  Jacobs,  77  Or.  246,  150  P.  284  (that 
gas  will  ignite  with  instant  explosion  upon  coming  in 
contact  with  a  flame). 

South  Dakota:  Solleim  v.  Norbeck  &  N.  Co.,  34  S.  D.  79, 
147  N.  W.  266  (nature  of  dynamite  and  the  high  degree 
of  care  necessary  in  handling  it). 

Texas:  Hamburg-Bremen  Fire  Ins.  Co.  v.  Swift,  (Tex. 
Civ.  App.),  130  S.  W.  670  (that  hazard  had  been  increased 
by  having  baled  hay  left  on  balcony  of  house,  not  judicially 
noticed) ;  International  &  G.  N.  R.  Co.  v.  Walters,  (Tex. 
Civ.  App.),  165  S.  W.  525  (that  engines  and  cars  extend 
outside  of  the  rails  on  which  they  run);  Enid,  O.  &  W. 
R.  Co.  v.  State,  (Tex.  Civ.  App.),  181  S.  W.  498  (that  rails 
and  ties  of  an  unused   line   ultimately   become  worthless 


496  JUDICIAL   NOTICE 

if  not  taken  up);  Mendiola  v.  GonzaU;s,  (Tex.  Civ.  App.), 
185  S.  W.  389;  White  v.  Manning,  ',G  Tex.  Civ.  App.  298, 
102  S.  W.  1160  (that  beer  is  intoxicating). 
Utah:  Spiking  v.  Consolidated  Ry.  &  Power  Co.,  33  Utah 
313,  93  P.  838  (purpose  of  fender  on  street  cars) ;  Fazio  v. 
Corey  Bros.  Co.,  43  Utah  120.  134  P.  747  (that  dynamite  is 
inherently   dangerous). 

Washington:  Patterson  v.  Wenatchee  Canning  Co.,  53 
Wash.  155,  101  P.  721  (that  meat  in  storage  will  spoil  or 
become  damaged  through  internal  defects  or  through  the 
operation  of  nature);  Wendt  v.  Industrial  Ins.  Com.,  80 
Wash.  Ill,  141  P.  311  (that  a  chisel  is  a  common  tool  for 
a   carpenter   and    requires    frequent    sharpening). 

The  course  and  laws  of  nature  are  judicially  noticed: 
California:     Scanlan  v.  San  Francisco  &  S.  J.  V.  Ry.  Co., 
(Cal.),  55  P.  694. 

Idaho:  Petajaniemi  v.  Washington  Water  Power  Co.,  22 
Ida.  20,  124  P.  783   (flooding  by  back  flow  from  dams). 

Oklahoma:  Payne  v.  McCormick  Har.  Mach.  Co.,  11  Okl. 
318,  66  P.  287  (that  a  crop  of  wheat  growing  in  April,  1898, 
is  not  the  crop  harvested  in  1899);  First  Nat.  Bank  v. 
Rogers,  24  Okl.  357,  103  P.  582  (that  a  contract  to  plant, 
cultivate  to  maturity  and  gather  a  crop  of  cotton  is  a 
contract  for  services  or  labor  for  a  longer  period  than  a 
month). 

Oregon:  Morton  v.  Oregon  Short  Line  Ry.  Co.,  48  Or.  444, 
87  P.  151  (effect  of  flood  waters) ;  Blackford  v.  Black,  73 
Or.  61,  143  P.  1136   (wet  and  dry  seasons). 

Texas:  Matagorda  Canal  Co.  v.  Markham  Irr.  Co.,  (Tex. 
Civ.  App.),   154   S.  W.   1176. 

Facts  relating  to  human  life,  health,  habits,  and  acts 
and  also  personal  status  and  condition  are  judicially 
noticed: 

Arkansas:  Auten  v.  Board,  83  Ark.  431,  104  S.  W.  130 
(that  the  great  majority  of  medical  writers  and  practi- 
tioners advocate  vaccination  as  a  safe  and  efficient  means 


JUDICIAL   NOTICE  497 

of  protecting  cities  and  thickly  settled  communities  against 
smallpox). 

Mississippi:  Bridges  v.  Jackson  Elec.  Ry.,  L.  &  P.  Co., 
86  Miss.  584,  38  So.  788  (that  it  is  more  dangerous  to  be 
on  the  running  board  of  a  street  car  than  in  a  seat  or  on 
the  platform). 

Nebraska:  Kane  v.  Chicago,  B.  &  Q.  R.  Co.,  90  Neb.  112, 
132  N.  W.  920  (that  color  blindness  occurs  in  about  5  per 
cent  of  all  human  males  in  civilized  countries,  and  is  dis- 
covered in  every  period  of  life  from  infancy  to  advanced 
senility). 

New  York:  Wamser  v.  Browning,  K.  &  Co.,  109  App.  Div. 
53,  95  N.  Y.  S.  1051  (that  men  ordinarily  in  business  hours 
wear  their  watches  in  their  vests). 

Washington:  Rood  v.  Seattle  Elec.  Co.,  55  Wash.  217, 
104  P.  249  (that  ends  of  fingers  which  have  been  amputated 
are  very  sensitive  to  touch  and  cold). 

Facts  of  universal  recognition  and  notoriety  are  judi- 
cially recognized: 

Arkansas:  Davies  v.  Hunt,  37  Ark.  574  (matters  con- 
nected with  the  origin,  history  and  dissolution  of  the  "Real 
Estate   Bank"). 

Nevada:  State  v.  Brodigan,  37  Nev.  245,  141  P.  988  (con- 
ditions of  state,  in  order  to  interpret  statute). 
Texas:  Ogden  v.  Lund,  11  Tex.  688  (when  a  state  of 
war  exists  between  the  United  States  and  another  coun- 
try); Hatch  v.  Dunn,  11  Tex.  708  (existence  of  contract 
of  Powers  and  Hewiston  to  colonize  within  the  Coast 
Leagues);  Lumpkin  v.  Murrell,  46  Tex.  51  (different  classes 
of  notes  and  bills  in  circulation  as  money  at  a  particular 
time). 

California.  It  is  not  error  to  introduce  an  almanac  in  evi- 
dence to  prove  the  time  the  sun  rose  on  a  particular  date, 
aa  the  court  will  take  judicial  notice  of  the  fact. — People 
v.  Chee  Kee.  61  Cal.  404. 

On  a  trial  lor  burglary,  judicial  notice  was  taken  of 
the  time  when  the  sun  rose  on  the  day  on  which  the  offense 
was  alleged  to  have  been  committed. — People  v.  Chee  Kee, 
61  Cal.  404. 


498  JUDICIAL   NOTICE 

Whether  trees  were  natural  growth  or  planted  is  a  sub- 
ject of  judicial  notice. — Scarborough  v.  Woodhill,  7  Cal. 
App.  39,  93  P.  383. 

Idaho.  By  statute  the  courts  of  the  state  take  judicial 
notice  of  the  laws  of  nature,  and  in  such  cases  resort  for 
their  aid  and  information  to  appropriate  books  and  docu- 
ments of  reference. — Petajaniemi  v.  Washington  Water 
Power  Co.,  22  Ida.  20,  124  P.  783. 

Kansas.  Judicial  notice  not  taken  that  dry,  fine  coal  dust 
is  a  dangerous  and  explosive  element  in  a  coal  mine. — 
Cherokee  &  P.  Coal  &  Min.  Co.  v.  Wilson,  47  Kan.  460, 
28  P.  178. 

The  natural  shrinkage  of  grain  in  transit  is  judicially 
known.— Cardwell  v.  Union  Pac.  R.  Co.,  90  Kan.  707,  136 
P.   244. 

Nebraska.  Courts  will  take  judicial  notice  that  in  this 
latitude  potatoes,  beets  and  turnips  are  not  the  spon- 
taneous productions  of  the  soil. — Myers  v.  Menter,  63  Neb. 
427,  88  N.  W.  662. 

North  Dakota.  Judicial  notice  is  taken  of  the  use  of 
"Standard  time"  in  designating  the  hour  of  the  day. — 
Orvik  v.  Casselman,  15  N.  D.  35,  105  N.  W.  1105. 
Oklahoma.  Courts  take  judicial  notice  of  the  seasons  and 
the  course  of  nature,  which  includes  the  general  course 
of  agriculture  and  the  natural  growth  of  the  staple  crops 
of  the  country. — First  Nat.  Bank  v.  Rogers,  24  Okl.  357, 
103  P.  582. 

Where  a  notary  before  whom  an  affidavit  was  made 
was  of  the  same  name  as  one  of  the  parties  to  the  suit  in 
which  such  affidavit  was  used,  the  court  could  not  take 
judicial  notice  that  they  were  one  and  the  same  person. 
—England  Bros.  v.  Young,  25  Okl.  876,  110  P.  895. 
Oregon.  The  habits  and  instincts  of  domestic  animals  are 
judicially  noticed. — Hill  v.  President  and  Trustees  of  Tua- 
latin Academy  and  Pacific  University,  61  Or.  190,  121  P. 
901. 

South  Dakota.  That  trees  and  other  forms  of  plant  life 
are  subject  to  communicable  disease,  is  judicially  noticed. 
— Hawley,  ex  parte,  22  S.  D.  23,   115  N.  W.   93. 


JUDICIAL  NOTICE  499 

The  courts  will  take  notice  of  the  propensity  of  horses 
on  opposite  sides  of  a  fence  to  frolic — Houska  v.  Hrabe, 
35  S.  D.  269,  151  N.  W.  1021. 

Texas.  That  rice  cannot  be  grown  to  maturity  without 
water  is  a  matter  of  judicial  cognizance. — Barr  v.  Cardiff, 
32  Tex.  Civ.  App.  495,  75  S.  W.  341. 

Where  a  statute  defining  the  offense  of  selling  intoxi- 
cants does  not  mention  beer,  the  court  could  not  take 
judicial  notice  that  it  was  intoxicating,  although  the  court 
knows  that  well  known  beverages,  such  as  whiskey, 
brandy,  gin  and  the  like  are  intoxicating. — Dallas  Brew- 
ery v.  Holmes  Bros.,  51  Tex.  Civ.  App.  514,  112  S.  W.  122. 

In  the  absence  of  proof  the  court  does  not  know  that  $50 
was  such  grossly  inadequate  consideration  for  120  lots  as 
would  warrant  holding  a  deed  void  on  collateral  attack. 
—Rule  v.  Richards,   (Tex.  Civ.  App.),  149  S.  W.  1073. 


NOTE    XXVI.  < 

(To  Article  58.) 

The  list  of  matters  judicially  noticed  in  this  article  is  not 
intended  to  be  quite  complete.  It  is  compiled  from  1  Ph.  Ev. 
458-467,  and  T.  E.  ss.  4-20,  where  the  subject  is  gone  into 
more  minutely.  (1  Greenl.  Ev.,  §§  4-6,  and  notes.)  A  con- 
venient list  is  also  given  in  R.  N.  P.  ss.  88-92,  which  is  much 
to  the  same  effect.  It  may  be  doubted  whether  an  absolutely 
complete  list  could  be  formed,  as  it  is  practically  impossible 
to  enumerate  everything  which  is  so  notorious  in  itself,  or  so 
distinctly  recorded  by  public  authority,  that  it  would  be  su- 
perfluous to  prove  it.  Paragraph  (1)  is  drawn  with  reference 
to  the  fusion  of  Law,  Equity,  Admiralty  and  Testamentary 
Jurisdiction  effected   by   the  Judicature  Act. 


500  JUDICIAL  NOTICE 

Article  59. 
as  to  proof  of  such  facts. 

No  evidence  of  any  fact  of  which  the  Court  will 
take  judicial  notice  need  be  given  by  the  party 
alleging  its  existence;  but  the  judge,  upon  being 
called  upon  to  take  judicial  notice  thereof,  may, 
if  he  is  unacquainted  with  such  fact,  refer  to  any 
person  or  to  any  document  or  book  of  reference 
for  his  satisfaction  in  relation  thereto,  or  may 
refuse  to  take  judicial  notice  thereof  unless  and 
until  the  party  calling  upon  him  to  take  such  no- 
tice produces  any  such  document  or  book  of  ref- 
erence, (a) 

METHOD  OF  ACQUIRING  JUDICIAL   KNOWLEDGE. 

An  almanac  may  be  consulted  or  admitted  in  evidence 
for  the  purpose  of  refreshing  the  mind  of  the  court  as 
to  the  time  of  the  rising  or  setting  of  the  sun  at  a  certain 
place  on  a  given  day. — State  v.  Board  of  Com'rs,  34  Mont. 
426,  87  P.  450;  Lendle  v.  Robinson,  53  App.  Div.  (N.  Y.) 
140,  65  N.  Y.  S.  894;  Montenes  v.  Metropolitan  St.  Ry.  Co., 
77  App.  Div.  (N.  Y.),  493.  78  N.  Y.  S.  1059;  State  v.  Morris, 
47  Conn.  179. 

The  best  and  most  satisfactory  evidence  in  all  cases  is 
required. — Strauss  v.  Heiss,  48  Md.  292;  Gardner  v.  The 
Collector,  73  U.   S.    (6  Wall.)    489. 

California.  "The  fact,  for  the  proof  of  which  the  Almanac 
was  offered  (time  when  the  sun  rose  on  a  certain  morn- 
ing), was  one  of  those  facts  of  which  a  cpurt  may  take 
judicial  notice;  formal  proof  of  it  was  therefore  unnec- 
essary.    It  would  have  been  sufficient  to  have  called  it  to 


a  T.  E.  (from  Greenleaf)  s.  20.  E.  g.,  a  judge  will  refer  in 
case  of  need  to  an  almanac,  or  to  a  printed  copy  of  the  stat- 
utes, or  write  to  the  Foreign  Office,  to  know  whether  a  state 
has  been  recognized. 


JUDICIAL  NOTICE  501 

the  knowledge  of  the  judge  at  the  trial;  and  if  his  mem- 
ory was  at  fault,  or  his  information  not  sufficiently  full 
and  precise  to  induce  him  to  act  upon  it,  he  had  the  right 
to  resort  to  an  almanac  or  any  other  book  of  reference  for 
the  purpose  of  satisfying  himself  about  it;  and  such  knowl- 
edge would  have  been  evidence." — People  v.  Chee  Kee, 
61  Cal.   404. 

The  court  may  inform  itself  from  any  source  of  a  mat- 
ter of  which  it  is  required  to  take  judicial  notice. — People 
v.   Mayes,   113   Cal.   618. 

Colorado.  To  determine  a  fact  of  which  the  court  is  re- 
quired to  take  judicial  notice,  resort  may  be  had  to  any 
source  of  information  which  in  its  nature  is  capable  of 
refreshing  the  judge's  recollection  and  conveying  to  his 
mind  a  clear  and  satisfactory  answer.  A  question  of  fact 
respecting  the  existence  or  nonexistence  of  a  law  is  a 
question  of  law  to  be  determined  by  the  court,  and  to  de- 
termine the  question  the  court  may  resort  to  that  which 
is  proper  and  essential  to  satisfy  its  mind.  The  court 
may  forego  its  own  investigation  and  accept  other  infor- 
mation when  it  believes  such  information  more  likely  to 
approach  the  truth  than  its  own  investigations. — Harri- 
son v.  People,  57  Colo.  137,  140  P.  203. 
Idaho.  A  court  may  inform  itself  as  to  the  laws  of  nature 
and  in  order  to  do  so  may  resort  to  appropriate  books 
and  documents. — Petajaniemi  v.  Washington  Water  Power 
Co.,  22  Ida.  20,  124  P.  783. 

Kansas.  The  court  when  called  upon  to  take  judicial  no"- 
tice  of  a  subject,  may  properly  inform  itself  upon  the 
question  from  reliable  sources  open  to  all.  So  held  where 
the  navigability  of  a  river  in  early  days  was  in  question. 
—Hurst  v.  Dana.  86  Kan.  947,  122  P.  1041. 
Maryland.  Documents  or  books  of  reference  may  be  re- 
sorted to.— Line  v.  Line,  119  Md.  403,  86  A.  1032. 
Montana.  Where  a  doubt  exists  in  the  mind  of  the  court 
as  to  a  matter  of  which  it  is  required  to  take  judicial 
notice,  it  may  order  evidence  taken  for  the  purpose  of 
refreshing  its  memory. — State  v.  Board  Com'rs,  34  Mont. 
426,  87  P.  450. 


502  FACTS  ADMITTED 

Oregon.  A  court  may  inform  itself  of  the  accession  to 
office  of  a  notary  public,  his  official  seal  and  his  continu- 
ance in  office,  by  reference  to  the  official  records  of  the 
state  department.— Butts  v.  Purdy,  63  Or.  150,  125  P.  313. 
Washington.  Possibly  courts  may  look  to  stipulations  or 
admissions  of  counsel  to  refresh  the  memory  as  to  facts 
within  the  realm  of  judicial  knowledge. — Gottstein  v. 
Lister,  88  Wash.  462,  153  P.  595. 

United  States.  Intel-national  law  is  part  of  the  law  of  the 
land  and  must  be  ascertained  and  administered  by  the 
courts  when  questions  of  right  depending  upon  it  are  pre- 
sented for  determination.  For  this  purpose,  where  there  is 
no  treaty,  and  no  controlling  executive  or  legislative  act  or 
judicial  decision,  resort  must  be  had  to  the  customs  and 
usages  of  "civilized  nations;  and,  as  evidence  of  these,  the 
courts  will  look  to  the  works  of  jurists  and  commentators, 
who,  by  years  of  labor,  research  and  experience,  have  made 
themselves  peculiarly  well  acquainted  with  the  subjects  of 
which  they  treat.— Hilton  v.  Guyot,  159  U.  S.  113;  The 
Paquete  Habana,  175  U.  S.  677,  20  S.  Ct.  290. 
Federal.  The  Court  may  resort  to  any  authoritative 
sources  of  information  to  enlighten  its  judgment  as  to  the 
meaning  of  a  term  as  a  matter  of  law. — United  States  v. 
One  Car  Load,  188  Fed.  453. 

Article  60. 

evidence  need  not  be  given  of  facts  admitted. 

No  fact  need  be  proved  in  any  proceeding  which 
the  parties  thereto  or  their  agents  agree  to  admit 
at  the  hearing,  or  which  they  have  admitted  be- 
fore the  hearing  and  with  reference  thereto,  or 
by  their  pleadings,  (a)     Provided  that  in  a  trial 

a  See  Schedule  to  Judicature  Act  of  1875,  Order  xxxii.  The 
fact  that  a  document  is  admitted  does  not  make  it  relevant, 
and  is  not  equivalent  to  putting  it  in  evidence,  per  James, 
L.  J.,  in  Watson  v.  Rodwell,  L.  R.  11  Ch.  Div.  150.  [4  Wig- 
more  Ev.,  §§  2588-2596.  For  admissions  by  parties,  see 
supra,  Articles  15-20.] 


FACTS   ADMITTED  503 

for  felony  the  prisoner  can  make  no  admissions 
so  as  to  dispense  with  proof,  though  a  confession 
may  be  proved  as  against  him,  subject  to  the  rules 
stated  in  Articles  21-24.  (b) 

FACTS  FORMALLY  ADMITTED. 

"An  express  waiver,  made  in  the  course  or  preparatory  to 
trial,  by  the  party  or  his  attorney,  conceding  for  the  pur- 
poses of  the  trial  the  truth  of  some  alleged  fact,  has  the 
effect  of  a  confessory  pleading,  in  that  the  fact  is  there- 
after to  be  taken  for  granted;  so  that  the  one  party  need 
offer  no  evidence  to  prove  it,  and  the  other  is  not  allowed 
to  disprove  it.  This  is  what  is  commonly  termed  a  sol- 
emn— i.  e.,  ceremonial  or  formal — or  judicial  admission,  and 
is,  in  truth,  a  substitute  for  evidence,  in  that  it  does  away 
with   the   need   for  evidence." — 4   Wigmore  Ev.,    §    2588. 

Admissions  of  fact  made  at  the  trial  by  counsel  to  sim- 
plify the  issues  are  proper  for  the  consideration  of  the  jury. 
Blandon  v.  State,  6  Ga.  App.  782,  65  S.  E.  842;  Goodwin  v. 
State,  1  Boyle's  (24  Del.)  169,  74  A.  1101. 
Arkansas.  The  truth  of  answers  in  an  application  for  in- 
surance need  not  be  proved  where  the  falsity  of  such  an- 
swers was  pleaded  as  a  defense,  and  the  application  was 
referred  to  in  and  attached  to  the  answer  of  defendant, 
but  not  put  in  evidence. — National  Annuity  Ass'n  v.  McCall, 
103  Ark.  201,   146  S.  W.   125. 

California.  The  exclusion  of  evidence  tending  to  prove  a 
proposition  that  has  been  admitted,  is  not  error. — Wyatt 
v.  Pacific  Elec.  Ry.  Co.,  156  Cal.  170,  103  P.  892. 
Delaware.  Where  the  defendant's  counsel  on  the  trial 
did  not  deny  the  statement  of  the  prosecuting  attoruey  that 
defendant  admitted  certain  matters,  the  admission  was 
binding  on  tin-  defendant  and  he  thereby  waived  proof  of 
such  matters.  Goodwin  v.  State,  1  Boyle's  (24  Del.)  L69, 
74  A.  1101. 

Massachusetts.  In  a  criminal  prosecution  the  admission 
by  defendant    that   the  act  was  done  with  a  malicious  in- 


b  1   Ph.  Ev.   391,  n.   r>.     in   R.  v.   Thornhill,  s  c.  &    lv.    Lord 
Abinger  acted  upon  this  rule  in  a  trial  for  perjury. 


504  FACTS   ADMITTED 

tent,  does  not  preclude  the  prosecution  from  proving  such 
intent. — Commonwealth  v.  McCarthy,   119  Mass.   354. 

Montana.  In  an  action  on  the  official  bond  of  a  city 
treasurer  for  failure  to  account  for  a  definite  sum,  where 
defendants  by  their  answer  admitted  receiving  such  sum 
as  the  property  of  the  city,  the  exclusion  of  evidence  that 
the  predecessor  of  the  treasurer  turned  over  to  him  cer- 
tain funds  belonging  to  the  city,  was  not  error. — City  of 
Great  Falls  v.  Hanks,  21  Mont.  83,  52  P.  785. 

In  an  action  against  a  municipality  to  recover  the  cost 
of  repairing  a  sewer  which  had  become  a  nuisance,  and 
had  been  repaired  by  plaintiff,  where  the  defendant's  coun- 
sel admitted  that  the  only  issue  was  whether  or  not  the 
expense  incurred  by  plaintiff  was  necessary,  the  exclusion 
of  evidence  as  to  the  reasonableness  of  plaintiff's  charge 
was  not  error. — Murray  v.  City  of  Butte,  35  Mont.  161,  88 
P.  789. 

Nebraska.  Proof  of  admitted  facts  is  immaterial,  but  not 
necessarily  prejudicial. — Wittenberg  v.  Mollyneaux,  60  Neb. 
583,   83  N.  W.   842. 

New  York.  The  admission  by  defendant  or  his  counsel 
in  open  court  during  trial,  of  facts  of  importance  obviates 
the  necessity  of  evidence  to  prove  such  facts. — People  v. 
Walker,  198  N.  Y.  329,   91  N.  E.  806. 

Oklahoma.  Points  admitted  in  a  pleading  are  unnecessary 
to  be  proved.— Fish  v.  Sims,  42  Okl.  535,  141  P.  980. 

South  Carolina.  An  agreement  to  exclude  competent  and 
material  evidence  in  a  criminal  prosecution  is  contrary 
to  public  policy  and  void. — Spartanburg  v.  Parris,  85  S. 
C.  227,  67  S.  E.  246. 

Texas.  When  the  admission  is  a  judicial  confession,  or 
one  made  in  open  court,  there  must  be  evidence  introduced 
of  the  confessed  crime,  but  where  the  good  character  of  a 
defendant  is  admitted  by  the  prosecution,  it  is  not  error 
to  reject  evidence  upon  that  issue. — Beard  v.  State,  44  Tex. 
Cr.  R.  402,  71  S.  W.  960;  Wilson  v.  State,  (Tex.  Cr.  R.), 
72  S.  W.  862. 


FACTS  ADMITTED  505 

0 

Defendant  by  agreeing  that  the  law  under  which  he  was 
being  prosecuted  was  in  full  force  and  effect,  waived  the 
necessity  for  proof  of  that  fact  on  the  part  of  the  prose- 
cution.—Starnes  v.  State,  52  Tex.  Cr.  R.  403,  107  S.  W.  550. 

An  allegation  of  employment  in  plaintiff's  petition  not 
controverted  need  not  be  proved. — Williams  v.  Phelps, 
(Tex.  Civ.  App.),  171  S.  W.  1100. 

Utah.  The  admission  by  a  party  to  an  instrument  that 
he  executed  same  is  sufficient  proof  of  execution. — Comp. 
Laws  1907,   §  3405. 

Washington.  Where  the  answer  of  the  defendant  admitted 
that  plaintiff  was  the  owner  of  certain  property,  it  was 
proper  to  reject  plaintiff's  offer  to  put  the  deed  in  evidence 
to  show  title  in  him. — Schwede  v.  Hemrich,  29  Wash.  124, 
69   P.  643. 

Where  the  execution  of  a  document  is  admitted  by  the 
pleadings  of  a  party,  his  adversary  may  introduce  it  in 
evidence  without  proof  of  execution. — Kauffman  v.  Baillie, 
46  Wash.   248,  89   P.   548. 

ADMISSIONS    AT    TRIAL. 

California.  In  a  prosecution  for  murder,  admission  of 
evidence  of  the  pursuit  and  capture  of  defendant,  was 
proper,  although  defendant  had  admitted  the  facts. — Peo- 
ple v.  Fredericks,  106  Cal.  554,  39  P.  944. 

In  an  action  to  recover  the  value  of  goods  alleged  to 
have  been  sold  and  delivered,  that  the  defendant  may  have 
been  estopped  from  denying  the  sale,  did  not  dispense 
with  proof  of  the  sale  and  delivery. — Napa  Valley  P.  Co.  v. 
San  Francisco  Relief  &  R.  C.  F.,  16  Cal.  App.  461,  118 
P.  469. 

Indiana.  Where,  in  a  prosecution  for  murder,  the  defend- 
ant admitted  that  decedent  died  from  a  wound  inflicted  by 
him,  it  was  not  error  to  exclude  or  admit  further  evidence 
of  the  fact.— Trogdon  v.  State,  133  Ind.  1,  32  N.  E.  7: 

Iowa.  In  a  prosecution  for  murder  where  it  was  admitted 
that  defendant  killed  decedent,  the  plea  of  not  guilty  put 
in  issue  every  allegation  of  the  indictment,  and  it  was  nee- 


506  FACTS  ADMITTED 

essary  to  prove  the  killing  by  competent  evidence. — State 
v.  Winter,  72  Iowa  627,  34  N.  W.  475. 

Texas.  Where  the  prosecutrix  in  a  prosecution  for  rape 
has  admitted  having  blamed  her  pregnancy  upon  the  de- 
fendant and  also  upon  another,  the  exclusion  of  further 
evidence  as  to  her  contradictory  statements  was  not  error. 
—Cooper  v.  State,  72  Tex.  Cr.  R.  266,  162  S.  W.  364. 
Washington.  In  an  action  by  an  injured  servant  against 
the  master  where  plaintiff  admitted  that  he  heard  the  warn- 
ing of  danger,  the  exclusion  of  evidence  that  it  was  cus- 
tomary to  give  warning,  was  not  error. — Johnson  v.  Ander- 
son, 61  Wash.  100,  111  P.  1063. 


ORAL  EVIDENCE  507 

CHAPTER  VIII. 

OF  ORAL  EVIDENCE. 

Abticle  61. 
proof  of  facts  by  oral  evidence. 

All  facts  may  be  proved  by  oral  evidence  sub- 
ject to  the  provisions  as  to  the  proof  of  docu- 
ments contained  in  Chapters  IX,  X,  XI  and  XII. 

ORAL  EVIDENCE. 

See  Article  62,  infra. 
Arkansas.     A  justice  of  the  peace  may  testify  to  his  offi- 
cial capacity  to  perform  a  marriage  ceremony  without  pro- 
ducing his  commission. — Tanner  v.  State,  116  Ark.  452,  173 
S.  W.  200. 

Colorado.  A  witness  may  testify  that  he  is  an  officer  of  a 
corporation  without  the  production  of  the  records. — Sto- 
vell  v.  Alert  Gold  Min.  Co.,  38  Colo.  80,  87  P.  1071. 
Oklahoma.  On  an  issue  as  to  the  number  of  ties  bought, 
witness  may  testify  as  to  his  best  recollection,  independent 
of  the  entries  in  the  books,  without  offering  the  books  or 
showing  their  loss. — McCants  v.  Thompson,  27  Okl.  706, 
115   P.   600. 

Article  62.* 
ukai,  evidence  mist  be  direct. 

Oral  evidence  must  in  all  cases  whatever  be  di- 
rect ;  that  is  to  say — 

If  it  refers  to  a  fact  alleged  to  have  been  seen, 
it  must  be  the  evidence  of  a  witness  who  says  he 
saw  it; 


•See  note  at  end  of  article. 


508  ORAL  EVIDENCE 

If  it  refers  to  a  fact  alleged  to  have  been  heard, 
it  must  be  the  evidence  of  a  witness  who  says  he 
heard  it; 

If  it  refers  to  a  fact  alleged  to  have  been  per- 
ceived by  any  other  sense  or  in  any  other  man- 
ner, it  must  be  the  evidence  of  a  witness  who  says 
he  perceived  it  by  that  sense  or  in  that  manner; 

If  it  refers  to  an  opinion,  or  to  the  grounds  on 
which  that  opinion  is  held,  it  must  be  the  evidence 
of  the  person  who  holds  that  opinion  on  those 
grounds. 

TESTIMONY  AS  TO  FACTS  SEEN. 

In  General. 
California.     One  who  can  neither  read  nor  write  cannot  tes- 
tify to  the  contents  of  a  written  instrument  alleged  to  have 
been  lost. — Russell  v.  Brosseau,  65  Cal.  605,  4  P.  643. 
Montana.     The  condition  of  a  place  at  which  an  accident 
occurred  may  be  shown  by  a  witness  who  examined  it  the 
morning  after  the  accident. — Hollingsworth  v.  Davis-Daly 
Estates  Copper  Co.,  38  Mont.  143,  99  P.  142. 
Nebraska.     Any  person  who  has  examined  a  record  may 
be  permitted  to  testify  that  a  particular  fact  does  not  ap- 
pear therein. — Gutta  Percha  &  Rubber  Mfg.  Co.  v.  Ogalalla, 
40  Neb.  775,  59  N.  W.  513;    Smith  v.  First  Nat.  Bank,  45 
Neb.  444,  63  N.  W.  796. 

Oklahoma.  Witness  cannot  testify  to  the  grade  of  a  pro- 
duct after  its  shipment  to  a  distant  point  where  he  did  not 
grade  it  before  shipment. — Smoot  &  Abbott  v.  Moody  &  Co., 
34  Okl.  522,  125  P.  1134. 

Texas.  The  contents  of  a  written  instrument  cannot  be 
established  by  statements  of  a  third  party  made  to  the  wit- 
ness.— Mutual  Life  Ins.  Co.  v.  Tillman,  84  Tex.  31,  19  S. 
W.  294. 

A  witness   long   experienced   in   handling   and   shipping 
cattle   may   testify  as   to  their   condition   and   class  after 


ORAL  EVIDENCE  509 

reaching  the  market,  although  he  did  not  see  them  the  day 
of  their  arrival,  but  saw  them  before  they  were  sold. — 
Trout  &  Newberry  v.  Gulf  C.  &  S.  F.  Ry.  Co.,  (Tex.  Civ. 
App.),  Ill  S.  W.  220. 

A  witness  who  has  opportunity  to  observe  a  fact,  but 
does  not  do  so  cannot  testify  to  such  fact. — Beesing  v. 
State,   (Tex.  Cr.  R.),  180  S.  W.  256. 

Utah.  Where  the  rotten  condition  of  a  ladder  was  alleged 
to  have  been  the  cause  of  plaintiff's  injuries,  a  witness  to 
whom  it  was  pointed  out  four  days  after  the  accident  could 
properly  testify  to  its  condition,  the  ladder  having  been 
fully  identified. — Reese  v.  Morgan  Silver  Min.  Co.,  17  Utah 
489,  54  P.  759. 

Diagrams,  Maps  and  Plans. 
California.     Map  of  addition   of  town  admitted   to   locate 
place  of  accident. — Foley  v.  Northern  California  Power  Co., 
165  Cal.  103,  130  P.  1183. 

Nebraska.  A  correct  plan  or  drawing  of  an  excavation  and 
the  surrounding  locality  where  an  accident  occurred  is  ad- 
missible.— Village  of  Culbertson  v.  Holliday,  52  Neb.  229, 
69  N.  W.  853. 

North  Dakota.  Diagram  of  a  cut  where  an  accident  oc- 
curred not  admitted,  no  foundation  being  laid. — Anderson 
v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.,  18  N.  D.  462,  123 
N.  W.  281. 

Washington.  Maps  are  admissible  as  illustrative  of  testi- 
mony of  witnesses  in  condemnation  proceedings. — Portland 
&  S.  Ry.  Co.  v.  Clarke  County,  48  Wash.  509,  93  P.  1083. 

Photographs. 

Photographs,  duly  verified,  are  admissible  in  evidence  as 

aids  to  the  jury  in  arriving  at  an  understanding  of  the 

evidence   or  of  the   situation   or  condition   or  location  of 

objects  or  premises,  material  and  relevant  to  the  issues: 

North  Dakota:  Higgs  v.  Minneapolis,  St.  P.  &  S.  S.  M. 
Ry.  Co.,  16  N.  D.  446,  114  N.  W.  722  (photographs  of  right- 
of-way  of  railroad  where  it  is  claimed  a  fire  originated). 


510  ORAL  EVIDENCE 

Oklahoma:  St.  Louis  &  S.  F.  R.  Co.  v.  Dale,  36  Okl.  114, 
128  P.  137  (action  for  loss  of  crops  by  inundation;  photo- 
graphs of  the  topography  affected,  including  the  lands  cul- 
tivated by  plaintiff,  the  length  and  extent  of  the  ditches 
made  by  defendant,  and  the  timber  and  other  permanent 
things,  admitted). 

The  weight  to  be  given  to  photographs  material  to  the 
issues  is  not  of  conclusive  effect  as  a  matter  of  law,  but 
depends  upon  the  skill,  accuracy  and  manner  in  which 
taken,  and  they  are  to  be  considered  under  the  same  tests 
as  other  evidence. — Higgs  v.  Minneapolis,  St.  P.  &  S.  S. 
M.  Ry.  Co.,  16  N.  D.  446,  114  N.  W.  722;  St.  Louis  &  S.  F. 
R.  Co.  v.  Dale,  36  Okl.  114,  128  P.  137. 

That  photographs  were  taken  some  time  after  the  acci- 
dent is  immaterial,  where  the  topography  shown  has  not 
materially  changed. — Sherlock  v.  Minneapolis,  St.  P.  & 
S.  S.  M.  Ry.  Co.,  24  N.  D.  40,  138  N.  W.  976;  St.  Louis  &  S. 
F.  R.  Co.  v.  Dale,  36  Okl.  114,  128  P.  137. 

The  practice  of  admitting  photographs  and  models  in 
evidence  in  all  proper  cases  should  be  encouraged. — Stone 
v.  Northern  Pac.  Ry.  Co.,  29  N.  D.  480,  151  N.  W.  36;  Kelly 
v.  City  of  Spokane,  83  Wash.  55,  145  P.  57. 
Arkansas.  Photographs  proved  to  be  correct,  like  dia- 
grams, are  admissible  as  evidence  to  aid  the  court  or  jury 
to  understand  the  evidence,  and  witnesses  to  explain  their 
testimony. — Kansas  City  Southern  Ry.  Co.  v.  Morris,  80 
Ark.  528,  98  S.  W.  363. 

California.  A  photograph  is  used  like  any  other  chart  for 
illustrative  purposes. — Kimball  v.  Northern  Elec.  Co.,  159 
Cal.  225,  113  P.  156. 

Enlarged  photographs  of  the  scene  of  an  accident  are 
admissible,  although  the  maker  is  not  called  to  prove  their 
accuracy. — Diller  v.  Northern  Calif.  Power  Co.,  162  Cal. 
531,  123  P.   359. 

Colorado.  The  fact  that  a  photograph  was  not  taken  by  a 
professional  photographer  does  not  render  it  inadmissible 
in  evidence.  If  it  is  otherwise  competent  it  is  only  neces- 
sary to  show  that  it  is  a  correct  likeness  of  the  objects 


ORAL  EVIDENCE  511 

which  it  purports  to  represent,  in  order  to  warrant  its  ad- 
mission in  evidence,  and  this  may  be  shown  by  any  com- 
petent witness.— Mow  v.  People,  31  Colo.  351,  72  P.  1069. 

If  a  photograph  is  inaccurate  or  taken  in  a  way  to  make 
it  misleading,  the  testimony  is  practically  of  no  value. — 
Hayes'  Estate,  In  re,  55  Colo.  340,  135  P.  449. 

The  preliminary  question  as  to  whether  a  photograph  is 
a  fair  and  accurate  representation  of  the  objects  which  it 
purports  to  portray  is  a  matter  largely  within  the  discre- 
tion of  the  trial  court. — Hayes'  Estate,  In  re,  55  Colo.  340, 
135  P.  449. 

Kansas.  The  admission  of  photographs  in  evidence  is  in 
the  discretion  of  the  court,  and  if  they  tend  to  confuse  the 
jury  they  should  be  rejected. — Boddington  v.  Kansas  City, 
95  Kan.  189,  148  P.  252. 

North  Dakota.  The  fact  that  photographs  offered  in  evi- 
dence were  taken  some  time  after  the  accident  is  imma- 
terial where  the  topography  shown  has  not  materially 
changed. — Sherlock  v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry. 
Co.,  24  N.  D.  40,  138  N.  W.  976. 

Photographs  showing  locality  near  place  of  accident  at 
crossing,  made  where  conditions  not  substantially  changed, 
admitted.— Sherlock  v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ry. 
Co.,  24  N.  D.  40,  138  N.  W.  976. 

It  was  not  error  to  deny  admission  in  evidence  of  the  pho- 
tograph of  a  portion  only  of  a  crossing  where  an  accident 
occurred,  taken  from  some  distance  to  the  side  of  the  main 
line  track,  and  giving  perhaps  a  misleading  view  of  the 
situation.— Stone  v.  Northern  Pac.  Ry.  Co.,  29  N.  D.  480, 
151  N.  W.  36. 

Oklahoma.  Photographs  showing  the  location  and  char- 
acter of  wounds  are  admissible. — Smith  v.  Territory,  11 
Okl.  669,  69  P.  805. 

Where  photographs  are  proven  to  be  a  true  and  correct 
representation  of  whatever  they  purport  to  reproduce,  they 
are  admissible  and  competent  as  evidence,  as  an  appro- 
priate aid  to  the  jury  in  elucidating  the  evidence;  and  this 
rule  applies  to  persons,  places  and  things.     (Photographs 


512  ORAL  EVIDENCE 

of  deceased  taken  after  the  body  had  been  removed  from 
the  scene  of  the  homicide  to  the  residence  of  his  uncle, 
admitted).— Smith  v.  Territory,  11  Okl.  669,  69  P.  805. 

The  fact  that  photographs  were  taken  at  a  time  one 
and  two  years  after  the  date  of  respective  injuries,  to  land 
by  flooding,  does  not  render  them  incompetent,  where  of- 
fered only  for  the  purpose  of  showing  the  topography  of 
the  affected  country  and  other  permanent  conditions,  as 
distinguished  from  those  of  a  transient  or  temporary  char- 
acter.—St.  Louis  &  S.  F.  R.  Co.  v.  Dale,  36  Okl.  114,  128 
P.  137. 

Oregon.  Photographs  of  the  scene  of  a  wreck,  taken  the 
next  morning  after  an  accident  and  before  conditions  ma- 
terially changed,  admissible. — Maynard  v.  Oregon  R.  & 
Nav.  Co.,  46  Or.  15,  78  P.  983. 

Photograph  copy  of  an  instrument  admissible  in  evidence 
is  admissible  when  shown  to  be  correct  and  proper  founda- 
tion laid. — Parker  v.  C.  A.  Smith  Lumber  &  Mfg.  Co.,  70 
Or.  41,  138  P.  1061. 

Texas.  Photographs  of  the  place  where  an  accident  oc- 
curred, properly  identified  as  representing  the  scene,  are 
admissible. — Thompson  v.  Galveston,  H.  &  S.  H.  Ry.  Co., 
48  Tex.  Civ.  App.  284,  106  S.  W.  910. 

Photographs  of  plaintiff  taken  before  the  accident  are 
admissible. — Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Harper,  53 
Tex.   Civ.   App.   614,    114    S.  W.   1168. 

Photographic  tracings  showing  weakness  of  pulse  and 
microscopic  photographs  of  excretions  admissible. — Mis- 
souri, K.  &  T.  Ry.  Co.  v.  Heacker,  (Tex.  Civ.  App.),  168 
S.  W.  26. 

Where  photographic  tracings  are  shown  to  be  scien- 
tifically and  correctly  taken,  they  are  admissible. — Mis- 
souri, K.  &  T.  Ry.  Co.  v.  Heacker,  (Tex.  Civ.  App.),  168 
S.  W.  26. 

A  photograph  of  the  place  where  an  accident  occurred 
at  a  railroad  crossing  is  admissible,  although  it  showed 
a  flat  car  there  when  a  box  car  was  shown  by  the  proof 
to  have  been  there  at  the  time  of  the  accident,  more  fully 


ORAL  EVIDENCE  513 

obstructing  the  view. — Hovey  v.  Sanders,  (Tex.  Civ.  App.), 
174  S.  W.  1025. 

Utah.  Photographs  of  wreck  taken  an  hour  after  the  acci- 
dent, admissible. — Johnson  v.  Union  Pac.  R.  Co.,  35  Utah 
285,  100  P.  390. 

Washington.  On  the  issue  of  forgery  of  a  note  where  there 
are  present  some  500  concededly  genuine  signatures  as 
well  as  the  one  in  question,  photographs  of  the  disputed 
signature  and  of  some  of  the  genuine  ones  were  properly 
excluded,  although  where  the  genuine  signatures  cannot 
be  brought  into  court  a  photograph  taken  with  proper  care 
may  be  admitted.  Where  such  photos  show  want  of  prop- 
er care  in  taking  they  are  properly  rejected. — Crane  v. 
Dexter  Horton  &  Co.,  5  Wash.  479,  32  P.  223. 

Photographs  of  a  car  after  a  collision  admissible  to 
show  force  of  impact  and  probable  injury  to  passengers. 
—Taylor  v.  Spokane,  P.  &  S.  Ry.  Co.,  72  Wash.  378,  130 
P.  506. 

Sciagraphs  (X-Ray). 

Proof  of  the  accuracy  and  correctness  of  an  X-ray  photo- 
graph is  required  before  it  can  be  admitted  in  evidence. 
— Prescott  &  N.  W.  R.  Co.  v.  Pranks,  111  Ark.  83.  163 
S.  W.  180;  Miller  v.  Dumon,  24  Wash.  648,  64  P.  804. 
Arkansas.  An  X-ray  photograph  is  admissible,  though  it 
is  not  infallible,  and  might  possibly  be  misleading. — Miller 
v.  Minturn.  73  Ark.  183,  83  S.  W.  918. 

"It  is  now  a  recognized  fact  that  by  the  aid  of  proper 
apparatus  a  picture  of  the  human  body  may  be  obtained 
that  will  more  or  less  define  the  skeleton  and  show  any 
injuries  that  may  have  resulted  to  the  bones,  or  any  for- 
eign substance  that  may  be  lodged  in  the  body.  There- 
fore, X-ray  photographs  are  admissible  in  evidence  when 
proof  of  their  accuracy  and  correctness  is  produced." 
(Showing  dislocation  of  plaintiff's  hip.) — Prescott  &  N.  W. 
R.  Co.  v.  Franks,  111  Ark.  83,  163  S.  W.  180. 
California.  Familiarity  of  physicians  examined  with  ref- 
erence to  X-ray  photographs  of  an  injury  should  be  shown 
but  such  familiarity  may  be  implied  from  their  other  tes- 


514  ORAL  EVIDENCE 

timony. — Kimball  v.  Northern  Electric  Co.,  159  Cal.  225, 
113  P.  156. 

Montana.  An  X-ray  photograph  is  competent  evidence  to 
prove  a  condition  which  can  be  shown  by  a  presentation 
of  that  sort.  (Condition  of  bone  in  plaintiff's  leg.) — Stokes 
v.  Long,   (Mont),  159  P.  28. 

Nebraska.  An  X-ray  sciagraph  showing  a  calcareous  de- 
posit in  the  tissues  of  an  injured  foot,  is  admissible. — City 
of  Geneva  v.  Burnett,  65  Neb.  464,  91  N.  W.  275. 
Texas.  An  X-ray  photograph  showing  the  condition  of 
plaintiff's  injured  bones,  is  admissible. — Houston  &  T.  C. 
R.  Co.  v.  Shepard,  54  Tex.  Civ.  App.  596,  118  S.  W.  596. 
Washington.  Photographs  taken  by  common  processes  are 
generally  held  admissible  as  evidence,  and  there  would 
seem  to  be  no  reason  for  making  a  distinction  between  an 
X-ray  and  a  common  photograph;  that  is,  either  is  admis- 
sible as  evidence  when  verified  by  proof  that  it  is  a  true 
representation  of  an  object  which  is  the  subject  of  inquiry. 
—Miller  v.  Dumon,  24  Wash.  648,  64  P.  804. 

Testimony  of  a  physician  who  made  X-ray  photographs 
of  plaintiff's  injured  neck,  in  explaining  the  photographs 
and  showing  the  bones  which  were  exhibited  thereby  and 
in  explaining  what  bones  were  named  in  the  evidence,  is 
admissible,  where  a  sufficient  predicate  is  laid  for  the 
introduction  of  the  photographs. — Pecos  &  N.  T.  Ry.  Co. 
v.  Winkler,    (Tex.   Civ.  App.),   179   S.   W.   691. 

TESTIMONY  AS  TO   FACTS   HEARD. 

In  General. 

Arkansas.  A  workman,  unable  to  distinguish  the  words, 
although  he  recognizes  the  voice  to  be  that  of  his  fore- 
man, cannot  testify  to  what  the  foreman  said,  where  the 
words  were  repeated  to  him  by  another  workman  in  the 
absence  of  the  foreman. — Western  Coal  &  Min.  Co.  v. 
Corkille,  96  Ark.  387,  131  S.  W.  963. 

California.  Where  a  witness,  after  testifying  that  one  per- 
son gave  a  sum  of  money  to  another  for  use  of  witness, 
was  asked  how  he  knew  that  to  be  a  fact,   replied  that 


ORAL  EVIDENCE  515 

the  person  to  whom  the  money  was  given  told  him  so,  the 
answer,  over  objection,  was  allowed  to  stand. — Byrne  v. 
Reed,  75  Cal.  277,  17  P.  201. 

Where  it  is  alleged  that  the  attending  physician  ordered 
that  no  one  be  allowed  to  see  the  patient,  a  witness  who 
could  not  say  positively  that  he  heard  the  physician  give 
any  orders  to  that  effect,  and  did  not  remember  receiving 
such  order  from  any  one,  could  not  testify  as  to  the  giving 
of  such  order.— Wickes'  Estate,  In  re,  139  Cal.  195,  72 
P.  902. 

Articles  in  a  newspaper  with  which  defendant  had  no 
connection,  purporting  to  state  what  he  said,  are  no  evi- 
dence of  what  he  did  or  did  not  say. — Carpenter  v.  Ashley, 
148  Cal.  422,  83  P.  444. 

Colorado.  A  child  cannot  testify  that  defendant  sought  to 
poison  the  minds  of  plaintiff's  children  against  him  by 
repeating  what  it  had  been  told  by  its  mother  in  the  ab- 
sence of  both  parties  to  the  suit. — Gilpin  v.  Gilpin,  12  Colo. 
504,  21  P.  612. 

Idaho.  The  testimony  of  a  third  party  as  to  a  conversation 
between  others  should  be  received  with  great  caution,  and 
a  person's  memory  of  his  own  utterances  will  be  regarded 
as  more  authentic  than  that  of  a  listener. — Flynn  v.  Flynn, 
17   Ida.   147,  104  P.  1030. 

Nevada.  A  witness  cannot  testify  as  to  an  alleged  con- 
fession, portions  of  which  were  not  understood  by  him 
because  made  in  a  foreign  language.— State  v.  Buster,  23 
Nev.  346,  47  P.  194. 

Utah.  A  witness  cannot  testify  as  to  what  his  wife  told 
him  one  of  the  parties  told  her  as  to  the  ownership  of 
property  in  controversy. — Bolitho  v.  East,  45  Utah  181,  143 
P.  584. 

Telephone  Conversations. 
Colorado.  A  telephone  conversation  between  the  parties, 
and  upon  the  subject-matter  of  the  litigation,  having  been 
testified  to  by  one  of  the  parties,  may  also  be  testified  to 
by  a  bystander,  so  far  as  he  heard  it. — Kent  v.  Cobb,  24 
Colo.  App.  264,  133  P.  424. 


516  ORAL  EVIDENCE 

Kansas.  After  the  death  of  the  speaker,  what  he  said  to 
witness  over  a  telephone  may  he  testified  to. — Washbon  v. 
State  Bank,  86  Kan.  468,  121  P.   515. 

Nebraska.  Where  two  persons  talking  over  a  telephone 
cannot  hear  each  other  distinctly  and  the  conversation  is 
repeated  to  each  of  them  by  an  intermediate  operator,  the 
conversation  may  be  testified  to  by  such  persons,  the  op- 
erator being  considered  as  the  agent  of  both  parties. — 
Oskamp  v.  Gadsden,  35  Neb.  7,  52  N.  W.  718. 
Oklahoma.  A  telephone  conversation  may  be  repeated  in 
evidence  where  such  conversation  is  otherwise  admissible, 
though  the  witness  did  not  identify  positively  the  person 
with  whom  he  had  the  conversation.— Heckman  v.  Davis, 
(Okl.),  155  P.  1170. 

Oregon.  A  witness  may  testify  to  a  telephone  conversa- 
tion heard  by  him  by  "cutting  in"  where  he  recognizes  the 
voice  of  the  speaker.— De  Lore  v.  Smith,  67  Or.  304,  136 
P.  13. 

Texas.  A  witness  may  testify  to  a  conversation  had  over 
a  telephone. — Missouri  Pac.  Ry.  Co.  v.  Heidenheimer,  82 
Tex.  195,  17  S.  W.  608. 

A  witness  may  testify  that  plaintiff  received  an  offer 
of  employment,  where  the  witness  received  such  offer  over 
a  telephone  from  the  person  making  the  same,  and  for 
the  benefit  of  plaintiff. — St.  Louis  Southwestern  Ry.  Co. 
v.  Kennedy,    (Tex.  Civ.  App.),  96  S.  W.  653. 

A  witness  cannot  testify  as  to  what  a  person  at  the  other 
end  of  a  telephone  conversation  said  to  a  third  person 
with  whom  the  conversation  was  held  and  who  communi- 
cated it  to  witness. — Texas  &  P.  Ry.  Co.  v.  Felker,  44 
Tex.  Civ.  App.  420,  99  S.  W.  439. 

Defendant's  agent  cannot  testify  to  what  a  subagent 
telephoned  him  in  regard  to  the  absence  of  an  alleged 
material  witness. — Galveston  H.  &  S.  A.  Ry.  Co.  v.  Rein- 
hart,   (Tex.  Civ.  App.),  182  S.  W.  436. 

Interpreter  as  Medium. 
California.     A  witness  cannot  testify  as  to  what  he  heard 
a  person  say  when  he  did  not  understand  the  language 


ORAL   EVIDENCE  517 

used,  but  it  was  translated  to  him  by  another.— People  v. 
Ah  Yute,  56  Cal.  119;  People  v.  John,  137  Cal.  220,  69  P. 
1063;  People  v.  Jan  John,  144  Cal.  284,  77  P.  950;  People 
v.  Petruzo,  13  Cal.  App.  569,  110  P.  324. 

Where  two  persons  who  speak  different  languages  are 
unable  to  understand  each  other  and  select  an  interpreter, 
he  will  be  considered  as  the  agent  of  each  and  statements 
made  by  one  to  the  other  are  not  hearsay,  but  competent 
as  admissions. — Kelly  v.  Ning  Yung  Benev.  Ass'n,  2  Cal. 
App.  460,  84  P.  321. 

Colorado.  Where  a  conversation  is  held  through  an  inter- 
preter, a  witness  can  only  testify  as  to  that  part  thereof 
as  he,  himself,  understood  without  the  aid  of  the  inter- 
preter.—Sharp  v.  Mclntire,  23  Colo.  99,  46  P.  115. 
Montana.  Admissions  made  to  an  interpreter  who  trans- 
lated same  to  witness,  cannot  be  testified  to  by  such  wit- 
ness.—Territory  v.  Big  Knot,  6  Mont.  242,  11  P.  670. 
Nebraska.  A  conversation  conducted  through  an  inter- 
preter where  neither  party  understands  the  language 
spoken  by  the  other,  may  be  testified  to  by  such  parties. 
— Oskamp  v.  Gadsden,  35  Neb.  7,  52  N.  W.  718. 

Where  a  conversation  between  parties  is  conducted 
through  an  interpreter,  persons  who  heard  and  understood 
what  the  interpreter  said  in  translating  the  conversation 
may  testify  thereto. — Oskamp  v.  Gadsden,  35  Neb.  7,  52 
N.    W.    718. 

Texas.  A  witness  cannot  testify  as  to  what  another  per- 
son said  when  he  did  not  understand  the  language  spoken, 
but  only  knew  what  it  was  alleged  to  be  from  translation 
by  an  interpreter. — Cervantes  v.  State,  52  Tex.  Cr.  It. 
82,  105  S.  W.  499. 

SOURCE  OF  KNOWLEDGE  OF  WITNESS. 
California.     To  show  that  a  business  was  carried  on  by  a 
person  in  his  own  name,  testimony  of  parties  that  they 
sold  goods  to  him  in  his  own  name,  is  competent. — Kelly 
v.  Murphy,  70  Cal.  560,  12  P.  467. 

After  the  death  of  the  father,  a  child  may  testify  as  to 
the  amount  of  the  father's  earnings,  his  conduct,  the  man- 


518  ORAL   EVIDENCE 

ner  in  which  he  spent  his  money,  and  his  treatment  of  his 
children  other  than  witness. — Salmon  v.  Rathjens,  152 
Cal.  290,  92  P.  733. 

Upon  an  issue  as  to  plaintiff's  capacity  and  ability  as  a 
workman  to  perform  the  usual  work  of  his  trade  before 
and  after  an  accident  to  him,  a  witness  of  the  same  trade 
who  had  worked  with  plaintiff  before  and  after  the  acci- 
dent, is  competent  to  testify;  and  upon  such  issue,  an 
adult  son  of  plaintiff  is  qualified  to  testify  even  though  he 
be  not  a  workman  at  the  same  trade. — Majors  v.  Connor, 
162  Cal.  131,  121  P.  371. 

Kansas.  Upon  an  issue  as  to  the  relative  value  of  ear  and 
shelled  corn  for  seeding  purposes,  witness  may  testify 
why  shelled  corn  is  of  less  value,  and  may  state  the  reasons 
farmers  give  for  rejecting  shelled  corn  for  such  purpose. 
—Missouri  Pac.  R.  Co.  v.  Nevin,  31  Kan.  385,  2  P.  795. 

Whether  a  particular  train  on  a  railroad  is  a  regular  one 
or  an  extra,  may  be  shown  by  a  person  who  has  lived  sev- 
eral months  near  a  railroad  crossing,  and  that  his  business 
requires  him  to  cross  the  track  frequently,  and  that  he  is 
able  to  tell  the  time  the  regular  trains  pass  the  crossing. — 
Missouri  Pac.  R.  Co.  v.  Stevens,  35  Kan.  622,  12  P.  25. 

A  witness  whose  knowledge  was  obtained  from  the  books 
of  a  bank,  and  who  supervised  the  keeping  thereof,  may 
testify  that  a  person  alleged  to  have  passed  a  worthless 
check,  had  no  account  subject  to  check  at  the  bank. — 
State  v.  McCormick,  57  Kan.  440,  46  P.  777. 

The  weight  of  coal  at  its  final  destination,  after  reship- 
ment,  cannot  be  testified  to  by  the  purchaser,  basing  his 
testimony  on  information  received  from  the  consignee. — 
Wilkes  v.  Clark  Coal  &  G.  Co.,  95  Kan.  493,  148  P.  768. 
Montana.  Witness  testified  that  upon  a  certain  occasion 
he  spoke  certain  words  in  an  ordinary  and  natural  tone 
of  voice — the  tone  one  would  use  under  similar  circum- 
stances. Held,  unobjectionable. — Knuckey  v.  Butte  Elec. 
Ry.  Co.,  45  Mont.  106,  122  P.  280. 

Oklahoma.  A  witness  who  had  never  been  in  the  employ 
of  a  railroad,  was  not  connected  with  the  execution  of  the 


ORAL  EVIDENCE  519 

waybill,  or  had  no  knowledge  of  the  weight  of  the  car 
when  delivered  to  the  carrier,  could  not  testify  as  to  its 
weight  when  received  by  the  carrier. — St.  Louis,  I.  M.  & 
S.  Ry.  Co.  v.  Carlile,  35  Okl.  118,  128  P.  690. 
Oregon.  Where  owners  of  land  have  platted  the  same  and 
shown  roads  thereon,  and  engaged  a  real  estate  firm  to  sell 
the  lands,  members  of  such  firm  may  testify  as  to  the 
owner's  intention  to  dedicate  such  roads  to  the  use  of  the 
public— Spencer  v.  Peterson,  41  Or.  257,  68  P.  519. 
Texas.  Testimony  as  to  the  number  of  sheep  in  a  flock 
by  one  who  was  present  when  others  counted  them  and  put 
down  the  numbers  called  out  by  them  was  original  evi- 
dence.— Gresham  v.  Harcourt,  33  Tex.  Civ.  App.  196,  75 
S.  W.  808. 

A  husband  may  testify  as  to  the  performance  of  certain 
work  about  his  place  by  his  wife,  though  he  may  have 
been  absent  at  times  when  she  was  performing  such  work. 
—Gulf  C.  &  S.  F.  R.  Co.  v.  Booth,  (Tex.  Civ.  App.),  97  S. 
W.  128. 

The  value  of  live  stock  being  in  issue,  reports  taken 
from  a  daily  paper,  shown  to  have  been  regularly  made 
and  correctly  kept,  are  sufficient  without  the  testimony 
of  the  editor  that  he  had  personal  knowledge  of  the  several 
sales  reported. — Bullard  v.  Stewart,  46  Tex.  Civ.  App.  49, 
102  S.  W.  174. 

A  witness  may  testify  as  to  the  schedule  of  trains,  where 
he  has  gained  his  knowledge  from  perusal  of  the  official 
time  card  furnished  the  public  by  the  railroad. — Western 
Union  Tel  Co.  v.  O'Fiel,  47  Tex.  Civ.  App.  40,  104  S.  W.  406. 

Whether  or  not  a  person  can  hear  remarks  addressed 
to  him,  may  be  shown  by  the  testimony  of  one  so  sit- 
uated as  to  be  able  to  observe  the  actions  of  the  person 
addressed. — El  Paso  Elect.  Ry.  Co.  v.  Boer,  (Tex.  Civ. 
App.),  108  S.  W.   199. 

It  appearing  that  a  telephone  operator  at  the  central 
office  would  know  when  anything  was  wrong  with  the 
telephone  at  a  subscriber's  house,  her  statement  that  a 
telephone  was  damaged  by  lightning,  was  admissible  as  a 


520  ORAL  EVIDENCE 

statement  of  fact. — Southern  Tel.  &  Tel.  Co.  v.  Evans, 
54  Tex.  Civ.  App.  63,  116   S.  W.   418. 

Evidence  of  a  city  engineer  as  to  the  width  of  a  street 
is  not  objectionable  on  the  ground  that  he  was  not  present 
at  the  time  of  the  original  survey. — International  &  G.  N. 
R.  Co.  v.  Morin,  53  Tex.  Civ.  App.  531,  116  S.  W.  656. 

A  daughter  testifying  as  to  medicine  given  her  mother, 
who  did  not  see  the  doctor,  did  not  remember  what  kind  of 
medicine  the  mother  took,  did  not  know  the  quantity,  and 
did  not  know  how  she  learned  that  too  much  had  been 
taken,  but  supposed  that  she  learned  it  from  some  member 
of  the  family,  is  an  incompetent  witness. — Missouri,  Kan- 
sas &  Texas  Ry.  Co.  v.  Williams,  (Tex.  Civ.  App.),  133 
S.  W.  499. 

Where  abuse  of  wife  is  charged  against  the  husband,  a 
witness  who  has  never  been  at  the  home  of  the  parties 
and  only  knew  husband  in  a  business  way,  is  incompetent 
to  testify  on  the  issue. — Streight  v.  State,  62  Tex.  Civ. 
App.  453,   138   S.  W.   742. 

A  witness  cannot  testify  as  to  the  value  of  a  tract  of  land 
known  to  him  before,  but  not  seen  by  him  after  a  railroad 
had  been  built  across  it. — Wichita  Falls  &  W.  Ry.  Co.  v. 
Wyrick,   (Tex.  Civ.  App.),  147  S.  W.  730. 

Where  a  witness  had  opportunity  to  observe  certain  facts 
relative  to  another  person,  but  in  fact  did  not  observe  the 
facts  testified  to,  his  evidence  was  incompetent. — Beesing 
v.  State,  (Tex.  Cr.  R.),  180  S.  W.  256. 

Washington.  Witness  cannot  testify  as  to  matters  ap- 
pearing in  memoranda  made  by  him  from  data  furnished 
by  his  employes,  of  which  he  had  no  personal  knowledge. 
— Tingley  v.  Fairhaven  Land  Co.,  9  Wash.  34,  36  P.  1098. 

IDENTIFICATION. 
California.  Action  of  the  court  in  ordering  accused  to 
stand  up  during  the  trial  for  identification  by  a  witness 
is  not  in  violation  of  the  constitutional  provision  that  no 
person  shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself. — People  v.  Goldenson,  76  Cal.  328, 
19  P.  161. 


ORAL  EVIDENCE  521 

Montana.  A  witness  may  identify  a  person  with  whom  he 
is  shown  to  be  familiar,  by  the  sound  of  his  voice  without 
seeing  him.— State  v.  Vanella,  40  Mont.  326,  106  P.  364. 
Texas.  One  who  seeks  to  identify  a  copy  of  a  written  in- 
strument must  know  of  his  own  knowledge  that  it  is  in 
fact,  a  copy. — Walker  v.  Dickey,  44  Tex.  Civ.  App.  110,  98 
S.  W.  658. 

OPINION    OF   WITNESS. 

Arkansas.  A  witness  cannot  testify  as  to  the  cause  of  an 
accident  from  knowledge  obtained  from  what  the  plaintiff 
told  him  three  days  after  the  accident  by  which  plaintiff 
was  injured. — Little  Rock  &  H.  S.  W.  Ry.  Co.  v.  Cross,  78 
Ark.  220,  93  S.  W.  981. 

California.  A  witness  cannot  testify  that  the  acts  testified 
to  by  another  witness  constituted  the  playing  or  dealing 
the  game  of  faro.— People  v.  Gosset,  93  Cal.  641,  29  P.  246. 

An  opinion  of  a  witness  is  not  admissible  when  formed 
from  the  conclusion  of  another  person. — People  v.  Kerr, 
15  Cal.  App.  273,  114  P.  584. 

What  others  told  witness  about  the  products  of  a  country 
cannot  be  testified  to  by  him  to  show  its  productiveness. 
— Vallejo  &  N.  R.  Co.  v.  Reed  Orchard  Co.,  169  Cal.  545, 
147  P.  238. 

Colorado.  A  witness  cannot  testify  as  to  the  physical  con- 
dition of  a  party,  where  his  opinion  is  not  based  upon  his 
own  observations,  but  the  declarations  of  others. — St. 
Kevin  Min.  Co.  v.  Isaacs,  18  Colo.  400,  32  P.  822. 

Where  a  witness  testifies  that  he  knows  the  value  of  a 
thing  and  states  the  value,  but  does  not  give  reasons  upon 
which  his  opinion  is  based,  the  evidence  is  not  objection- 
able, where  an  opportunity  is  afforded  for  cross-examina- 
tion, though  not  availed  of. — Wilson  v.  Harnette,  32  Colo. 
172,  75  P.  395. 

That  the  publication  of  a  murder  in  the  newspapers  was 
upon  a  certain  date,  may  be  shown  by  employes  of  the 
papers  and  their  examination  of  the  newspaper  flies. — 
Byram  v.  People,  49   Colo.  533,  113  P.  528. 


522  ORAL  EVIDENCE 

Kansas.  The  condition  of  a  long  account  between  a  bank 
and  one  of  its  customers  cannot  be  shown  by  oral  testi- 
mony of  the  cashier,  in  the  absence  of  some  showing  that 
he  is  the  bookkeeper,  or  that  books  are  kept  under  his 
supervision,  or  that  he  has  knowledge  of  such  books. — 
Mann  v.  Second  Nat.  Bank,  34  Kan.  746,  10  P.  150. 

To  establish  the  fact  that  witness  relied  upon  what  he 
had  heard  concerning  the  responsibility  of  a  firm,  he  may 
testify  as  to  what  others  had  said  as  to  the  financial  re- 
sponsibility of  one  of  the  members  of  the  firm. — Mills  v. 
Riggle,  83  Kan.  703,  112  P.  617. 

Where  defendants  seek  to  show  good  faith  in  the  bring- 
ing of  a  prior  suit  against  the  plaintiff  in  the  instant  case, 
they  may  testify  as  to  what  was  told  them  by  their  client 
before  bringing  such  suit,  where  the  rule  of  privileged 
communications  is  waived,  and  such  client  testified  to  such 
matters.— Matthews  v.  McNeill,  98  Kan.  5,  157  P.  387. 
Montana.  In  arriving  at  the  compensation  for  a  right-of- 
way,  witnesses  resident  in  the  neighborhood,  and  familiar 
with  the  property,  may  testify  as  to  its  value,  though  not 
basing  their  opinions  on  sales  of  the  same  or  similar  prop- 
erty.—Montana  Ry.  Co.  v.  Warren,  6  Mont.  275,  12  P.  641; 
affirmed  137  U.  S.  348,  11  S.  Ct.  96,  34  L.  Ed.  681. 

Where  the  value  of  a  ring  was  in  controversy  and  it  had 
not  been  produced  on  notice,  oral  evidence  was  admissible 
to  describe  it,  and  this  description,  illustrated  with  an- 
other ring  was  proper  basis  for  the  opinion  of  an  expert 
as  to  its  value.— Sullivan  v.  Girson,  39  Mont.  274,  102  P.  320. 
Where  cattle  were  divided  into  several  herds,  the  whole 
number  of  cattle  being  at  issue,  the  testimony  of  a  wit- 
ness as  to  the  total  number  was  allowed  to  stand,  although 
he  had  personal  knowledge  of  the  number  in  some  of  the 
herds  only.— Ettien  v.  Drum,  39  Mont.  34,  150  P.  151. 

Nebraska.  A  witness  who  knows  nothing  of  the  character 
or  condition  of  goods  cannot  testify  as  to  their  value. — 
Smith  v.  First  Nat.  Bank,  45  Neb.  444,  63  N.  W.  796. 

Where  the  issue  is  the  value  of  a  stock  of  general  mer- 
chandise, one  who  knows  nothing  of  the  condition  of  the 


ORAL  EVIDENCE  523 

stock  or  its  market  value  is  incompetent  to  testify  on 
that  point.— Crocker  v.  Steidl,  82  Neb.  850,  118  N.  W.  1083. 
South  Dakota.  After  a  witness  has  admitted  that  he  does 
not  know  what  the  usual  wages  were  at  a  given  time  and 
place,  he  cannot  testify  what  they  were. — McCarthy  v. 
Fell,  24  S.  D.  74,  123  N.  W.  497. 

A  witness  cannot  state  his  opinion  based  upon  informa- 
tion received  from  others  without  independent  knowledge 
of  facts  to  base  the  same  upon. — Dunlap  v.  Great  Northern 
Ry.  Co.,  (S.  D.),  148  N.  W.  529. 

Texas.  A  witness  may  testify  as  to  the  market  at  a  given 
place  from  having  read  the  market  reports.  That  he  had 
the  same  information  from  other  sources  does  not  render 
the  testimony  incompetent. — Southern  Kansas  Ry.  Co.  v. 
Bennett,  46  Tex.  Civ.  App.  379,  103  S.  W.  1115;  Houston 
Packing  Co.  v.  Griffith,  (Tex.  Civ.  App.),  144  S.  W.  1139; 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Karrer,  (Tex.  Civ.  App.), 
109*  S.  W.   440. 

But  he  cannot  testify  from  information  based  merely 
upon  private  advices  sent  out  by  a  commission  company. 
—Texas  &  P.  Ry.  Co.  v.  Slator,  (Tex.  Civ.  App.),  102  S. 
W.  156. 

That  a  spark  arrester  used  on  locomotives  is  in  gen- 
eral use  throughout  the  country  cannot  be  testified  to  by 
a  witness  who  bases  his  conclusion  upon  information  de- 
rived by  him  from  reading  railway  journals. — Morgan  & 
Bros.  v.  Missouri,  K.  &  T.  Ry.  Co.,  50  Tex.  Civ.  App.  420, 
110  S.  W.  978. 

A  witness  cannot  testify  to  the  opinion  of  another  per- 
son which  was  stated  to  him,  although  he  is,  himself  of 
the  same  opinion. — Milino  Nat.  Bank  v.  Cobbs,  53  Tex. 
Civ.  App.  1,  115  S.  W.  345. 

The  number  of  cattle  in  a  herd  cannot  be  estimated  by 
one  who  has  not  seen  them  for  nearly  two  years. — Gibbens 
v.  Roundtree,    (Tex.  Civ.  App.),  117   S.  W.  168. 

A  witness  cannot  testify  as  to  the  value  of  certain  ani- 
mals at  a  given  time  and  place,  where  his  only  knowledge 
thereof  was  what  he  had  been  told  by  one  seeking  to  pur- 


524  ORAL  EVIDENCE 

chase  such  animals. — Gulf  C.  &  S.  F.  Ry.  Co.  v.  Gillespie 
&  Carlton,  54  Tex.  Civ.  App.  593,  118  S.  W.  628. 

Where  it  appears  that  the  opinion  of  a  witness  is  based 
upon  his  own  information,  as  well  as  that  obtained  from 
others,  he  is  competent  to  testify,  but  not  if  the  opinion 
is  based  entirely  upon  the  knowledge  obtained  from  others. 
—Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Arthur,  (Tex.  Civ.  App.),  124 
S.  W.  213;  Houston  &  T.  C.  R.  Co.  v.  Tisdale,  (Tex.  Civ. 
App.),   109   S.  W.  413. 

A  witness  need  not  state  the  facts  upon  which  his  opinion 
rests,  but  he  must  have  personal  means  and  opportunity 
for  knowledge  thereof,  otherwise  his  opinion  is  inadmis- 
sible.— Guerra  v.  San  Antonio  Sewer  Pipe  Co.,  (Tex.  Civ. 
App.),   163   S.  W.   669. 

The  value  of  materials  used  in  a  building  cannot  be  tes- 
tified to  by  an  expert,  who  gains  his  information  as  to  the 
materials  from  another  to  whom  he  had  submitted  speci- 
fications.— Heldenfels  v.  School  Trustees,  Dist.  No.  7,  (Tex. 
Civ.   App.)(>182   S.  W.   386. 

"CONCLUSIONS"  OR  "IMPRESSIONS." 
California.  The  impressions  of  a  witness  as  to  the  intent 
of  another  cannot  be  testified  to,  but  he  may  state  the 
declarations  of  the  party  made  to  him  while  such  party 
was  engaged  in  the  performance  of  an  act  and  illustrating 
the  object  and  intent  of  its  performance. — Tait  v.  Hall,  71 
Cal.  149,  12  P.  391. 

Kansas.  Witnesses  are  not  ordinarily  permitted  to  state 
in  general  language  their  conclusions  "that  a  wife  did  not 
want  to  sign  a  mortgage  on  her  homestead,"  and  that  "she 
was  forced  to  sign  the  mortgage,"  and  other  expressions 
of  similar  import.  In  all  cases  they  should  state  the  facts, 
recipe  the  declarations  of  the  parties  present  and  partici- 
patlng  in  the  transactions,  describe  the  acts  of  the  parties 
in  interest,  and  let  the  jury  arrive  at  their  own  conclusions. 
— Gabbey  v.  Forgeus,  38  Kan.  62,  15  P.  866. 

TESTIMONY  AS  TO   INTENT   AND   KNOWLEDGE. 

The  intent  of  a  person  in  doing  an  act  may  be  testified 
to  by  him.— Fanning  v.   Green,   156   Cal.   279,   104  P.   308; 


ORAL  EVIDENCE  525 

Fleet  v.  Tichenor,  156  Cal.  343,  104  P.  458;  Mahon  v.  Ran- 
kin, 54  Or.  412,   102  P.  608. 

Arkansas.  On  a  prosecution  for  larceny  a  witness  may  tes- 
tify that  the  owner  of  the  alleged  stolen  article  told  him 
that  the  defendant  might  take  it,  and  that  the  witness 
communicated  this  to  the  defendant. — Little  v.  State, 
(Ark.),  178  S.  W.  374. 

California.  Testimony  after  the  act  as  to  intent  in  mak- 
ing a  conveyance  is  admissible. — Fagan  v.  Lentz,  56  Cal. 
681,  105  P.  951;  Fulkerson  v.  Stiles,  156  Cal.  703,  105  P.  966. 
Colorado.  On  an  issue  as  to  whether  a  transfer  of  a  stock 
of  goods  was  fraudulent,  the  parties  to  the  transfer  may 
be  asked,  and  may  testify,  as  to  whether  the  transfer  was 
intended  to  hinder,  delay  and  defraud  creditors. — Brown 
Bros.  &  Co.  v.  Potter,  13  Colo.  App.  512,  58  P.  785. 
Kansas.  A  party  to  an  agreement  cannot  testify  as  to 
what  he  had  in  mind  in  the  preliminary  negotiations  nor 
state  his  unexpressed  intent. — Cornelius  v.  Atchison,  T.  & 
S.  F.  Ry.  Co.,   (Kan.),  87  P.  751. 

While  the  circumstances  attending  the  act  of  a  party 
are  competent  evidence  of  the  condition  or  state  of  his 
mind  in  doing  it,  his  own  testimony  as  to  his  motive,  pur- 
pose and  intent  is  also  competent. — Eckerd  v.  Weve,  85 
Kan.  752,  18  P.  870. 

Where  malice  is  charged  in  discriminating  on  account  of 
race  or  color,  the  person  charged  with  making  the  discrim- 
ination may  testify  to  the  state  of  his  mind  during  the 
transaction  complained  of. — Williams  v.  Chicago,  R.  I.  & 
P.  Ry.  Co.,  90  Kan.  478,  135  P.  671. 

Montana.  Plaintiff  may  testify  as  to  his  intent  with  refer- 
ence to  the  manner  of  living  he  proposed  to  furnish  defend- 
ant in  case  she  should  return  to  him. — Bordeaux  v.  Bor- 
deaux, 43  Mont.  102,  115  P.  25. 

Nebraska.  Where  a  person's  acts  are  ambiguous,  and 
their  effect  depends  upon  the  intention  with  which  they 
were  done,  he  may  testify  as  to  his  reason  for  doing  them. 
—Hackney  v.  Raymond  Bros.  Clarke  Co.,  68  Neb.  624,  94 
N.  W.  822;  McCormick  Harvesting  Mach.  Co.,  4  Neb. 
(Unof.)   587,  95  N.  W.  627. 


526  ORAL  EVIDENCE 

Texas.  A  servant  may  testify  that  he  did  not  know  of  the 
danger  in  performing  the  work  in  which  he  was  injured  in 
the  way  he  did. — Texas  &  N.  O.  R.  Co.  v.  Plummer,  57  Tex. 
Civ.  App.  563,  122  S.  W.  942. 

PHYSICAL  EXAMINATIONS. 

Examination  Compulsory. 

Arkansas.  The  court  has  the  power  to  require  a  plaintiff 
to  submit  to  an  examination  of  his  person  to  ascertain  if, 
in  the  opinion  of  medical  experts,  his  injury  is  permanent. 
— St.  Louis  Southwestern  Ry.  Co.  v.  Dobbins,  60  Ark.  481, 
30  S.  W.  887. 

The  court  may  require  a  plaintiff  to  submit  to  an  exam- 
ination of  his  person  to  ascertain  the  nature  and  extent  of 
the  injuries  of  which  he  complains. — St.  Louis,  I.  M.  &  S. 
R.  Co.  v.  Carter,  93  Ark.  589,  126  S.  W.  99. 
California.  The  court  has  the  power  to  order  the  plaintiff 
suing  for  damages  for  personal  injuries  to  submit  to  a 
physical  examination  by  two  reputable  physicians,  her  own 
physicians  being  permitted  to  be  present. — Johnston  v. 
Southern  Pac.  Co.,  150  Cal.  535,  89  P.  348. 
Colorado.  In  actions  for  personal  injuries,  whenever  it 
fairly  appears  that  the  ends  of  justice  require  the  disclosure 
or  more  certain  ascertainment  of  important  facts  which 
can  only  be  disclosed  by  the  physical  examination  of  plain- 
tiff's person,  and  the  examination  may  be  made  without 
injury  to  plaintiff's  life  or  health,  or  the  infliction  of  seri- 
ous pain,  such  examination  should  be  applied  for  and  made 
before  trial  and  should  be  ordered  and  had  under  the  direc- 
tion and  control  of  the  trial  court. — Western  Glass  M.  Co. 
v.  Schoeninger,  42  Colo.  357,  94  P.  342;  Denver  City  Tram- 
way Co.  v.  Roberts,  43  Colo.  522,  96  P.  186. 
Kansas.  On  the  trial  of  an  action  for  damages  for  personal 
injuries  of  a  permanent  as  well  as  temporary  character 
to  the  plaintiff's  eyes,  where  the  plaintiff  himself  testified 
concerning  his  injuries,  and  no  physician  or  surgeon  or 
medical  expert  was  examined  as  a  witness  in  the  case,  the 
plaintiff  may  be  required  by  the  court,  upon  a  proper  ap- 


ORAL  EVIDENCE  527 

plication  being  made  therefor  by  the  defendant,  to  submit 
his  eyes  to  a  reasonable  and  proper  examination  by  some 
competent  expert,  for  the  purpose  of  ascertaining  the 
nature,  extent,  and  permanency  of  his  injuries;  the  court 
exercising  in  all  such  cases  a  sound  judicial  discretion. — 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Thul,  29  Kan.  333. 

In  an  action  to  recover  damages  for  personal  injuries, 
the  trial  court  has  power  to  require  the  injured  party  to 
submit  the  unexposed  portion  of  his  person  to  a  private 
examination  by  physicians  and  surgeons  appointed  by  the 
court,  when,  in  the  exercise  of  a  sound  judgment,  it  appears 
to  the  court  that  the  necessity  of  the  case  demands  such 
an  examination. — City  of  Ottawa  v.  Gilliland,  63  Kan.  165, 
65  P.  252. 

Nebraska.  Where,  during  the  trial  of  an  action  against  a 
surgeon  for  damages  for  malpractice,  the  plaintiff  volun- 
tarily submits  a  portion  of  her  body  to  the  inspection  of 
the  court  and  jury,  it  is  error  for  the  court  to  refuse  to 
permit  an  examination,  by  a  limited  number  of  reputable 
surgeons  of  defendant's  selection  and  school,  of  that  por- 
tion of  the  body  so  exhibited. — Booth  v.  Andrus,  91  Neb. 
810,  137  N.  W.  884. 

In  an  action  for  damages  for  personal  injuries,  the  court 
has  power  to  order  plaintiff  to  undergo  a  physical  examina- 
tion, where  the  circumstances  make  it  necessary  and  no 
substantial  injury  will  result. — State  v.  Troup,  98  Neb.  333, 
152  N.  W.  748. 

Nevada.  Trial  courts  have  the  right  to  exercise  the  power 
of  ordering  the  plaintiff  in  personal  injury  cases  to  submit 
to  a  physical  examination  to  ascertain  the  extent  of  his 
injuries,  and  such  power  is  vested  in  the  sound  discretion 
of  the  trial  judge,  and,  if  he  grants  or  denies  an  examina- 
tion, such  action  on  his  part  will  not  be  reversed  unless 
it  discloses  a  gross  abuse  of  discretion.  (Refusal  to  re- 
quire plaintiff  to  submit  to  an  examination  of  his  entire 
body  was  not  an  abuse  of  discretion,  where  plaintiff  had 
already  submitted  to  two  examinations  by  physicians  of 
defendant,  and  plaintiff  consented  at  the  trial  to  have  an 


528  ORAL  EVIDENCE 

examination  of  the  parts  injured.) — Murphy  v.  Southern 
Pac.  Co.,  31  Nev.  120,  101  P.  322. 

North  Dakota.  In  an  action  to  recover  damages  for  per- 
sonal injuries  alleged  to  be  permanent,  the  trial  court  has 
power  to  require  the  injured  party  to  submit  her  person 
to  an  examination  of  physicians  or  surgeons  designated  b> 
defendant,  when,  in  the  exercise  of  a  sound  judgment,  it 
appears  to  the  court  that  the  necessity  of  the  case  demands 
such  an  examination. — Brown  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  12  N.  D.  61,  95  N.  W.  153. 

To  permit  plaintiff  and  a  physician  of  her  selection  after 
examination  of  her  person,  to  testify  that  her  injury  was 
permanent,  and  to  deny  the  defendant  the  privilege  of  hav- 
ing the  alleged  injuries  examined  by  competent  surgeons 
to  enable  them  to  see  from  what,  if  any,  injuries  she  suf- 
fered, their  nature,  extent,  and  probable  duration,  was  an 
abuse  of  discretion  and  reversible  error. — Brown  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  12  N.  D.  61,  95  N.  W.  153. 
Texas.  Where  plaintiff  voluntarily  exposed  his  leg  show- 
ing no  apparent  marks  of  injury  on  its  surface,  he  may  be 
compelled  to  submit  to  an  examination,  but  he  will  not 
be  required  to  submit  to  an  operation  or  examination 
which  requires  him  to  be  under  the  influence  of  an  anaes- 
thetic.— Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Pemberton,  (Tex. 
Civ.  App.),  170  S.  W.  108. 

Washington.  A  plaintiff  suing  for  injuries  to  his  person 
may  be  compelled  to  submit  to  a  physical  examination  by 
experts,  on  penalty  of  having  his  case  dismissed. — Lane  v. 
Spokane  Falls  &  N  Ry.  Co.,  21  Wash.  119,  57  P.  367. 

A  physical  examination  of  the  injuries  alleged  to  have 
been  suffered  by  plaintiff  will  be  required  to  be  made  in 
proper  cases  by  impartial  physicians,  but  the  plaintiff  will 
not  be  compelled  to  submit  to  an  examination  by  physicians 
selected  by  defendant.— Just  v.  Littlefield,  87  Wash.  299,  151 
P.   780. 

Examination  Not  Compulsory. 
The  courts,  in  the  absence  of  a  constitutional  or  statu- 
tory provision  so  authorizing,  cannot  order  a  plaintiff  in  an 


ORAL  EVIDENCE  529 

action  for  damages  to  his  person  to  submit  in  advance  of 
or  during  the  trial  of  the  cause  to  an  examination  of  his 
person  by  physicians  to  be  appointed  by  the  court. — May 
v.  Northern  Pac.  Ry.  Co.,  32  Mont.  522,  81  P.  328;  Atchison, 
T.  &  S.  F.  Ry.  Co.  v.  Melson,  40  Okl.  1,  134  P.  388;  Austin 
&  N.  W.  R.  Co.  v.  Cluck,  97  Tex.  172,  77  S.  W.  403. 

Oklahoma.  The  courts  have  no  power  to  order  a  plaintiff 
in  an  action  for  an  injury  to  the  person  to  submit  to  a  sur- 
gical examination  in  advance  of  or  during  the  trial  of  the 
cause.— City  of  Kingfisher  v.  Altizer,  13  Okl.  121,  74  P.  107. 

Texas.  The  court  has  no  power  to  appoint  surgical  ex- 
perts and  order  an  examination  by  them  of  a  plaintiff  who 
is  seeking  to  recover  for  physical  injuries,  and  compel 
him  against  his  consent  to  submit  to  such  an  examination 
for  the  purpose  of  using  the  testimony  of  the  surgeons  as 
to  facts  ascertained  and  opinions  formed  by  them  from 
the  examination  as  to  the  nature  and  extent  of  plaintiff's 
injuries. — Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Sherwood,  (Tex. 
Civ.  App.),  67  S.  W.  776. 

Where  a  party  has  not  voluntarily  exhibited  his  person 
to  the  jury,  a  court  has  no  power  to  compel  him  to  do  so. 
—Austin  &  N.  W.  Ry.  Co.  v.  Cluck,  97  Tex.  172,  77  S.  W.  403. 

A  court  has  no  power  to  compel  a  party  against  his  con- 
sent to  submit  to  a  physical  examination  by  physicians, 
and  the  failure  of  such  party,  upon  the  request  of  his  ad- 
versary, to  submit  to  a  physical  examination  by  physicians 
to  be  appointed  by  the  court,  is  simply  a  matter  to  be  con- 
sidered by  the  jury. — International  &  G.  N.  R.  Co.  v. 
Butcher,    (Tex.  Civ.  App.),   81   S.  W.   819. 

Where  a  party  has  once  exhibited  his  person  to  the  jury 
to  show  the  extent  of  his  injuries,  and  physicians  of  his 
own  selection  have  testified  as  to  the  results  of  an  exam- 
ination by  them,  he  may  be  required  during  the  course  of 
the  trial  to  re-exhibit  them,  and  to  permit  an  examination 
of  the  injured  portion  of  his  person  by  a  physician  of  de- 
fendant who  had  already  made  an  examination  shortly 
after  the  accident. — Houston  &  T.  C.  R.  Co.  v.  Anglin,  99 
Tex.  349,  89  S.  W.  966. 


530  ORAL  EVIDENCE 

The  court  does  not  have  the  power  to  appoint  physicians 
and  surgeons  to  make  an  examination  of  the  injuries  of 
the  plaintiff,  and  compel  the  plaintiff  to  submit  to  such  an 
examination. — Taylor  v.  White,  (Tex.  Civ.  App.),  113  S. 
W.  554;  Missouri,  K.  &  T.  Ry.  Co.  v.  Rogers,  55  Tex.  Civ. 
App.  93,  117  S.  W.  939. 

REAL    EVIDENCE    (DEMONSTRATIVE    EVIDENCE). 

In  prosecutions  for  crime,  material  objects  connected 
therewith  are  admissible  as  exhibits: 

Arizona:  Rain  v.  State,  5  Ariz.  125,  137  P.  550  (burglary; 
goods  stolen). 

Arkansas:  Starchman  v.  State,  62  Ark.  538,  36  S.  W.  940 
(drills  and  punches  found  in  defendant's  house,  and  fitting 
holes  in  safe  which  was  blown  open). 

California:  People  v.  Hope,  62  Cal.  291  (burglary;  tools 
found  in  excavation  over  vault,  and  also  those  in  defend- 
ant's trunk) ;  People  v.  Sullivan,  129  Cal.  557,  62  P.  101 
(murder;  weapon  with  which  crime  was  committed);  Peo- 
ple v.  Westlake,  134  Cal.  505,  66  P.  731  (homicide;  two 
shirts  and  two  pairs  of  cuffs  owned  by  deceased  and  found 
in  possession  of  accused). 

Idaho:     State  v.  Allen,  23  Ida.  772,  131  P.  1112   (murder; 
revolver  holster  testified  to  be  that  of  defendant). 
Nebraska:     Savary   v.    State,    62    Neb.    166,    87    N.    W.    34 
(murder;    skull   of  deceased   and   photograph   used   in   ex- 
planation of  cause  of  death). 

New  Mexico:  Territory  v.  Lobato,  17  N.  M.  666,  134  P. 
222  (murder;  portion  of  skull  of  deceased,  showing  char- 
acter of  one  of  the  wounds). 

North  Dakota:  State  v.  Shonberg,  24  N.  D.  532,  140  N.  W. 
105  (larceny;  feeder  slats  and  chains  not  admitted  when 
not  shown  to  be  connected  with  the  crime). 

Oregon:  State  v.  Russell,  64  Or.  247,  129  P.  1051  (incest; 
child  exhibited  to  show  resemblance) ;  State  v.  Spanos,  66 
Or.  118,  134  P.  6  (homicide;  shirt  and  other  articles  found 
in  place  where  crime  was  committed);  State  v.  Pender, 
72  Or.  94,  142  P.  615   (murder;  revolver  with  which  crime 


ORAL  EVIDENCE  531 

was  said  to  have  been  committed  and  a  package  and  news- 
papers which  were  taken  to  place  of  murder). 
South  Dakota:     State  v.  Shields,  13  S.  D.  464,  83  N.  W.  559 
(watch  and  chain). 

Texas:  Roberson  v.  State,  (Tex.  Cr.  R.),  49  S.  W.  398 
(rape;  prosecutrix  testifying  in  injured  condition). 
Utah:  State  v.  Inlow,  44  Utah  485,  141  P.  530  (homicide; 
blood-stained  coat  worn  by  wife  of  accused  on  evening  of 
murder,  the  evidence  tending  to  show  conspiracy  between 
them). 

Washington:  State  v.  Cushing,  14  Wash.  527,  45  P.  145 
(murder;  clothing  worn  by  deceased  at  the  time,  and  gun 
with  which  shooting  was  committed). 

In  suits  for  personal  injuries  the  plaintiff  may  exhibit 
his  injured  limb  to  the  jury. — City  of  Crete  v.  Hendricks, 
(Neb.),  90  N.  W.  215;  Van  Horn  v.  Simpson,  35  S.  D.  640, 
153  N.  W.  883;  Texas  Traction  Co.  v.  Scoggins,  (Tex.  Civ. 
App.),  175  S.  W.  1128. 

In  personal  injury  cases,  exhibits  of  the  person  and  other 
material  objects  connected  with  and  illustrative  of  the  in- 
jury are  admissible: 

Colorado:  Colorado  Midland  Ry.  Co.  v.  McHarry,  41  Colo. 
398,  92  P.  915  (injuries  to  passenger  by  derailment  of 
train;  rotten  pieces  of  wood,  purporting  to  be  parts  of  the 
ties  at  the  place  of  accident). 

Oklahoma:  Continental  Casualty  Co.  v.  Wynne,  36  Okl.  325, 
129  P.  16  (personal  injury;  injured  parts  exhibited);  Wat- 
son v.  Taylor,  35  Okl.  768,  131  P.  922  (civil  action  for  rape; 
child  said  to  be  the  result  of  the  crime,  exhibited). 
Texas:  Memphis  Cotton  Oil  Co.  v.  Tolbert,  (Tex.  Civ. 
App.),  171  S.  W.  309  (personal  injury;  shoes  worn  by 
plaintiff  when  injury  occurred  admitted,  when  shown  to 
be  in  the  same  condition). 

NOTE   XXVII. 

(To  Article  62.) 

Owing  to  the  ambiguity  of  the  word  "evidence,"  which  is 
sometimes  used   to   signify   the   effect  of  a  fact  when   proved, 


532  ORAL  EVIDENCE 

and  sometimes  to  signify  the  testimony  by  which  a  fact  is 
proved,  the  expression  "hearsay  is  no  evidence"  has  many 
meanings.  Its  common  and  most  important  meaning  is  the 
one  given  in  Article  14,  which  might  be  otherwise  expressed 
by  saying  that  the  connection  between  events,  and  reports 
that  they  have  happened,  is  generally  so  remote  that  it  is 
expedient  to  regard  the  existence  of  the  reports  as  irrelevant 
to  the  occurrence  of  the  events,  except  in  excepted  cases. 
Article  62  expresses  the  same  thing  from  a  different  point  of 
view,  and  is  subject  to  no  exceptions  whatever.  It  asserts 
that  whatever  may  be  the  relation  of  a  fact  to  be  proved  to 
the  fact  in  issue,  it  must,  if  proved  by  oral  evidence,  be 
proved  by  direct  evidence.  For  instance,  if  it  were  to  be 
proved  under  Article  31  that  A,  who  died  fifty  years  ago, 
said-  that  he  had  heard  from  his  father  B,  who  died  100  years 
ago,  that  A's  grandfather  C  had  told  B  that  D,  C's  elder 
brother,  died  without  issue,  A's  statement  must  be  proved 
by  someone  who,  with  his  own  ears,  heard  him  make  it.  If 
(as  in  the  case  of  verbal  slander)  the  speaking  of  the  words 
was  the  very  point  in  issue,  they  must  be  proved  in  precisely 
the  same  way.  Cases  in  which  evidence  is  given  of  character 
and  general  opinion  may  perhaps  seem  to  be  exceptions  to 
this  rule,  but  they  are  not  so.  When  a  man  swears  that 
another  has  a  good  character,  he  means  that  he  has  heard 
many  people,  though  he  does  not  particularly  recollect  what 
people,  speak  well  of  him,  though  he  does  not  recollect  all 
that   they  said. 


DOCUMENTS  533 

CHAPTER  IX. 

OF   DOCUMENTARY   EVIDENCE— PRIMARY   AND    SEC- 
ONDARY, AND  ATTESTED  DOCUMENTS. 

Article  63. 
proof  of  content's  of  documents. 

The    contents    of    documents    may    be    proved 
either  by  primary  or  by  secondary  evidence. 

PRIMARY  OR  "BEST"   EVIDENCE. 

See  Article  65,  infra. 

Necessity   of   Producing    Best    Evidence. 

Secondary  evidence  must  always  be  received  with  cau- 
tion, and  then  not  until  every  means  is  shown  to  have  been 
exhausted  in  the  effort  to  procure  that  which  is  superior: 
California:  Norris  v.  Russell,  5  Cal.  249  (officer  who  sold 
property  at  tax  sale  merely  testified  that  he  preserved  no 
copy  of  notice  of  sale  and  knew  of  none;  but  the  printing 
office,  as  well  as  the  various  fiscal  offices  connected  with 
the  county  administration,  should  have  been  searched). 
Colorado:  Hartford  Fire  Ins.  Co.  v.  Smith,  3  Colo.  422 
(contents  of  a  letter  not  admitted,  where  objection  to  ex- 
clude was  not  met  by  offer  to  explain  the  absence  of  the 
letter) ;  Crane  v.  Andrews,  6  Colo.  353  (usages  of  banks 
as  to  numbering  and  making  indorsements  on  all  drafts 
sent  to  them  erroneously  admitted  to  prove  acceptance  of 
a  draft  apparently  not  accepted  on  its  face,  when  neither 
the  person  who  claimed  to  have  accepted  the  draft  nor  the 
one  to  whom  it  was  made  payable  was  produced  nor  their 
absence   accounted  for). 

Idaho.  The  question  being  whether  certain  land  was 
bought  with  a  wile's  money,  which  she  claimed  to  have 
borrowed  from  her  father,  letters  from  the  father,  checks, 
drafts,  and  the  books  of  the  bank,  were  the  best  evidence, 
and  ought  to  have  been  produced. — Chaney  v.  Gauld  Co., 
28  Ida.  76,  152   P.  468. 


534  DOCUMENTS 

Kansas.  Record  copy  of  a  deed  admitted  when  the  ori- 
ginal is  not  in  possession  or  control  of  the  party  desiring 
to  use  it.— Williams  v.  Hill,  16  Kan.  23. 
Montana.  Error  to  exclude  defendant's  offer  of  cancelled 
checks  which  he  had  given  in  payment  for  the  cattle  in 
question,  as  this  was  the  best  evidence. — Cuerth  v.  Arbo- 
gast,  48  Mont.  209,  136  P.  383. 

Oklahoma.  The  best  evidence  the  nature  of  the  cause  will 
permit  of  shall  be  required  if  possible  to  be  had;  but,  if 
not  possible,  then  the  best  evidence  that  can  be  had  shall 
be  allowed.  (Value  of  insured  goods  proved  by  parol 
where  books  had  been  lost  or  stolen.) — Commercial  Union 
Assur.  Co.  v.  Wolfe,  41  Okl.  342,  137  P.  704. 

The  best  evidence  the  nature  of  the  case  will  admit  of 
shall  always  be  required,  if  possible  to  be  had;  but  when 
the  best  evidence  is  not  available,  and  its  absence  is  prop- 
erly accounted  for,  secondary  evidence  is  admissible. 
(Parol  evidence  to  establish  a  written  contract  setting  out 
conditions  upon  which  notes  in  suit  had  been  executed, 
improperly  admitted,  in  the  absence  of  showing  that  the 
primary  evidence  was  not  available). — Farmers'  Nat.  Bank 
v.  Hartoon,    (Okl.),   159  P.  844. 

Texas.  Where  an  original  telegram,  which  was  primary 
evidence,  was  outside  of  the  jurisdiction  of  the  court,  a 
copy  received  by  plaintiff  and  pleaded  by  him  as  part  of 
the  contract  sued  on,  is  admissible  as  secondary  evidence. 
— Spaulding  v.  Smith,   (Tex.  Civ.  App.),  169  S.  W.  627. 

Nature  of  Evidence  Produced. 
California.  The  production  of  a  record  is  not  necessary  to 
prove  an  arrest,  for  an  arrest  does  not  necessarily  imply 
that  there  was  a  record. — People  v.  Manning,  48  Cal.  335. 
Kansas.  The  plaintiff  and  defendant  entered  into  a  parol 
contract,  whereby  plaintiff  was  to  furnish  the  money  and 
the  defendant  to  conduct  a  certain  business  for  the  plain- 
tiff in  the  defendant's  name.  In  an  action  by  the  plaintiff 
against  the  defendant  upon  such  contract,  the  plaintiff  may 
show  by  his  own  parol  testimony  what  the  arrangement 
was  between  the  plaintiff  and  the  defendant  with  regard 


DOCUMENTS  535 

to  the  money,  and  is  not  required  to  show  the  same  by 
some  other  kind  of  evidence. — Beyle  v.  Reid,  31  Kan.  113, 
1.  P.  264. 

The  evidence  of  a  father  and  mother,  cognizant  of  their 
child's  birth,  is  primary  evidence  of  its  date,  or  the  age 
of  the  child,  although  there  is  a  written  record  thereof  in 
the  family  Bible.— State  v.  Woods,  49  Kan.  237,  30  P.  520. 
Texas.  Oral  evidence  to  show  that  a  certain  horse  was 
registered  is  admissible,  without  producing  the  record. — 
National  State  Bank  v.  Ricketts,  (Tex.  Civ.  App.),  152  S. 
W.   646. 

In  a  proceeding  to  enjoin  the  keeping  of  a  bawdy  house, 
ownership  of  the  property  can  be  shown  by  the  tax  asses- 
sor's rolls,  the  introduction  of  deeds  thereto  not  being  nec- 
essary.— Campbell  v.  Peacock,  (Tex.  Civ.  App.),  176  S.  W. 
774. 

Matters  Collateral  To  Issue. 
Oklahoma.     Where  plaintiff's  ownership  of  land  was  not 
one  of  the  issues  in  the  case,  it  was  not  error  to  permit 
him  to  give  oral  testimony  that  he  owned  the  land  at  the 
time  he  deeded  it  to  defendant.     (Action  for  purchase  price 
of  land.)— Newcomer  v.  Sheppard,  (Okl.),  152  P.  66. 
Oregon.     Where  a  party  has  gone  into  possession  under 
an   assignment,    parol    evidence   thereof   is    admissible    to 
show  the  relation  and  understanding  of  the  parties. — Hotel 
Marion  Co.  v.  Waters,  77  Or.  426,  150  P.  865. 
Texas.     Oral  testimony  is  admissible  as  to  a  conveyance 
collateral    to    the   issues. — Larrabee   v.    Porter.    (Tex.    Civ. 
App.),   166   S.  W.   395. 

Washington.  A  party  may  testify  as  to  a  statement  made 
by  him  in  a  conversation  regarding  the  length  of  time  a 
bond  had  to  run,  without  producing  the  bond,  when  the 
object  of  the  testimony  was  to  show  his  understanding  as 
to  its  terms.— Seattle  Land  Co.  v.  Day,  2  Wash.  St.  451, 
27  P.  74. 

Plaintiff  suing  for  commission  earned  on  the  sale  of  real 
estate  is  not  required  to  prove  defendant's  ownership  by 
production  of  deeds. — Litchfield  v.  Bowen,  90  Wash.  286, 
155  P.  1053. 


536  DOCUMENTS. 

Matters  Required  To  Be  In  Writing. 
Arkansas.  Where  proof  of  publication  of  a  certain  list  is 
required  to  be  by  certificate,  a  matter  of  record,  proof 
thereof  cannot  be  made  by  the  oral  testimony  of  the  pub- 
lisher on  the  stand. — Martin  v.  Allard,  55  Ark.  218,  17  S. 
W.  878. 

California.  Evidence  of  a  private  surveyor  as  to  a  survey 
made  by  him  is  by  statute  inadmissible  except  to  explain 
or  rebut  an  official  survey  made  by  the  county  surveyor. 
—Vines  v.  Whitten,  4  Cal.  230. 

Kansas.  A  book  of  accounts  of  the  treasurer  of  a  school 
district  which  was  not  made  an  official  record  as  provided 
by  statute  is  inadmissible  to  show  the  state  of  his  accounts. 
— Hinton  v.  Nemaha  &  Jackson  Counties  School  District 
No.  2,  12  Kan.  573. 

Matters  Not  Required  To  Be  In  Writing. 
California.     Residence  of  a  defendant  in  a  judgment  ren- 
dered in  a  justice's  court  may  be  testified  to  by  parol. — 
Jolley  v.  Foltz,  34  Cal.  321. 

Oklahoma.  The  question  being  whether  30  per  cent,  of  the 
number  of  qualified  electors  in  a  school  district  partici- 
pated in  an  election,  oral  testimony  is  admissible  to  show 
the  total  number  of  voters  in  the  district,  the  evidence 
not  being  restricted  to  the  registry  list,  since  the  law  re- 
quiring registration  does  not  apply  to  such  elections. — 
McCreary  v.  Lee,  45  Okl.  201,  145  P.  777. 
Oregon.  The  opinion  of  a  supervising  architect  ordering 
suspension  of  work,  not  being  required  to  be  in  writing, 
parol  evidence  of  the  fact  and  terms  of  suspension  of  the 
work  is  admissible,  though  letters  authorizing  such  sus- 
pension were  in  existence. — Leiter  v.  Dwyer  Plumbing  & 
Heating  Co.,  66  Or.  474,  133  P.   1180. 

Texas.  Comptroller's  instructions  to  sheriff  authorizing 
employment  of  counsel  to  prosecute  suits  on  delinquent 
tax  lists  may  be  proved  by  parol. — Houston  &  T.  Ry.  Co. 
v.  State,  39  Tex.  148. 

Utah.  The  fact  that  commissioners,  appointed  by  the 
parties  interested  to  supervise  certain  dams,  kept  a  record 


DOCUMENTS  537 

of  their  proceedings,  which  they  were  not  required  to  do, 
does  not  exclude  oral  testimony  as  to  such  proceedings. 
— Peay  v.  City  of  Salt  Lake  City,  11  Utah  331,  40  P.  206. 

Matters  Covered  By  Writings. 
California.  Testimony  of  plaintiff  as  to  his  filings  on  gov- 
ernment land  is  inadmissible,  no  record  evidence  being 
offered.— Lincoln  v.  Sibeck,  27  Cal.  App.  61,  148  P.  967. 
Nebraska.  Where  a  witness  has  a  document  before  him, 
testimony  as  to  its  contents  is  inadmissible. — Corn  Ex- 
change Bank  v.  Ochlare  Orchards  Co.,  97  Neb.  536,  150 
N.  W.  651. 

Oklahoma.  Where  a  contract  of  agency  for  the  sale  of 
automobiles  was  reduced  to  writing,  the  writing  is  the 
best  evidence. — Ford  Motor  Co.  v.  Livesay,  (Okl),  160 
P.  901. 

South  Dakota.  Books  of  a  bank  are  the  best  evidence  as 
to  whether  new  deposits  were  made  or  old  deposits  were 
increased  after  a  certain  named  time,  in  preference  to  the 
cashier's  testimony. — Farmers'  State  Bank  v.  Empey,  (S. 
D.),  150  N.  W.  936. 

Texas.  Testimony  as  to  authority  in  writing  to  draw  for 
a  certain  amount  is  inadmissible. — Tinsley  v.  Penniman, 
83  Tex.  54,  18   S.  W.  718. 

Testimony  of  a  buyer  of  coal  sued  for  the  price,  as  to  a 
shortage  of  weights,  was  inadmissible,  where  there  was 
no  attempt  to  account  for  the  records  of  weights  made 
by  weighers  at  the  mine  and  at  destination. — Richard 
Cocke  &  Co.  v.  Big  Muddy  Coal  &  Iron  Co.,  (Tex.  Civ. 
App.),  155  S.  W.  1019. 

Matters  Not  Covered  By  Writings. 
Washington.     Where  no  record  was  made  of  orders  of  the 
county    commissioners,    other   evidence   thereof   is   admis- 
sible.— Roberson  v.  King  County,  20  Wash,  259,  55  P.  52. 

Matters  Treated   In   Account   Books. 
North  Dakota.     Where  a  litigant  sues  upon  a  book  account 
and  the  books  are  shown  to  be  in  his  possession,  a  state- 
ment by  the  plaintiff  that  there  is  owing  to  him  on  such 


538  DOCUMENTS 

account  a  certain  sum  of  money  does  not  constitute  com- 
petent evidence. — Kaye  v.  Taylor,  28  N.  D.  293,  148  N. 
W.  629. 

The  neglect  of  a  litigant  to  produce  competent  evidence 
which  is  in  his  possession,  does  not  justify  a  court  in  per- 
mitting the  introduction  of  that  which  is  secondary  and 
incompetent,  and  if  such  court  has  inadvertently  admitted 
the  same  over  objection,  he  can  later  correct  the  error  by 
excluding  the  same  from  the  consideration  of  the  jury. 
(Books  of  account  not  produced.) — Kaye  v.  Taylor,  28  N.  D. 
293,  148  N.  W.  629. 

Books  of  account  are  the  best  evidence  of  the  contents 
of  the  entries  made  therein.  (Testimony  of  an  officer  of 
plaintiff  as  to  value  and  delivery  of  goods  shown  in  books 
inadmissible). — Dr.  R.  D.  Eaton  Chemical  Co.  v.  Doherty, 
31  N.  D.  175,  153  N.  W.  966. 

Oklahoma.  A  member  of  the  plaintiff  firm  may  testify 
that  the  charges  contained  in  the  bill  of  particulars  were 
correct,  and  that  he  did  the  work  for  which  claim  was 
made,  though  plaintiff's  books  of  account  were  not  offered 
in  evidence.— Whitcomb  v.   Oiler,  41  Okl.  331,  137  P.  709. 

Information   Derived  From  Writings. 

California.  Information  derived  by  a,  witness  from  a  min- 
ute book  of  a  corporation,  is  inadmissible. — Spangenberg 
v.  Nesbitt,  22  Cal.  App.  274,  134  P.  343. 

Texas.  The  certificate  of  the  clerk  of  a  court  that  a  judg- 
ment has  been  properly  indexed  is  not  evidence  of  the  fact. 
—Glasscock  v.  Stringer,  11  Tex.  Civ.  App.  514,  32  S.  W.  920. 

A  tax  collector  cannot  testify  as  to  what  is  shown  by 
the  tax  rolls,  as  the  rolls,  or  a  certified  copy  thereof,  fur- 
nish the  best  evidence. — Sullivan  v.  Fant,  (Tex.  Civ.  App.), 
160  S.  W.  612. 

Washington.  Secondary  evidence  of  the  contents  of  a  let- 
ter is  not  admissible,  unless  the  original  is  accounted  for. 
—J.  I.  Case  Threshing  Machine  Co.  v.  Wiley,  89  Wash.  301, 
154  P.  437. 


DOCUMENTS  539 

Judgments  and  Judicial  Records. 
Colorado.  Parol  evidence  is  not  admissible  to  prove  the 
amount  of  a  judgment  or  the  cause  of  action  upon  which 
it  was  recovered.  The  record,  or  a  transcript  thereof, 
must  be  produced. — Watson  v.  Hahn,  1  Colo.  385. 
Nevada.  Suit  on  a  note  which  defendant  claimed  was 
given  in  consideration  of  certain  timber  sold  by  vendors  to 
defendant,  and  which  was  lost  through  the  result  of  a  prior 
suit  to  determine  ownership  of  the  timber.  Oral  testimony 
as  to  the  former  suit  and  judgment  inadmissible. — Davis 
v.  Notware,  13  Nev.  421. 

Oregon.  The  existence  of  a  judgment  or  execution  under 
which  plaintiff  claims  title  cannot  be  proven  by  parol. — 
Bowick  v.  Miller,  21  Or.  25,  26  P.  861. 

Washington.  Notice  of  petition  to  vacate  a  town  plat,  not 
required  by  law  to  be  made  a  part  of  the  record,  may 
be  proved  by  parol. — Fouts  v.  City  of  New  Whatcom,  14 
Wash.  49,  44  P.  111. 

Corporate  Existence  and  Proceedings. 
California.  Where  a  corporation  is  not  compelled  to  ap- 
point agents  by  deed  or  resolution,  parol  evidence  that  a 
person  was  authorized  to  act  as  its  agent  is  admissible.- — 
Carey  v.  Philadelphia  &  C.  Petroleum  Co.,  33  Cal.  694. 
Idaho.  In  a  suit  on  a  note,  plaintiff  may  show  by  its 
cashier  that  it  is  a  de  facto  corporation,  its  articles  not 
being  necessary  to  be  produced. — First  Nat.  Bank  v. 
Walker.  27  Ida.  199,  148  P.  46. 

North  Dakota.  Records  of  the  meetings  of  the  directors  of 
a  corporation,  together  with  its  by-laws,  are  the  best  evi- 
dence of  the  authority  conferred  upon  its  officers. — Grant 
County  State  Bank  v.  Northwestern  Land  Co.,  28  N.  D. 
479,  150  N.  W.  736. 

Washington.  The  acts  of  trustees  of  a  corporation  con- 
ferring authority  upon  certain  officers  to  perform  legiti- 
mate functions,  and  the  acts  of  the  officers  so  authorized, 
may  be  shown  by  parol  as  well  as  by  the  minutes  of  the 
secretary. — Starwich  v.  Washington  Cut  Glass  Co.,  64 
Wash.  42,   116   P.  459. 


540  DOCUMENTS 

Payment  of  Money. 
California.  Receipts  executed  by  a  third  party,  acknowl- 
edging the  payment  of  money,  are  but  secondary  evidence, 
as  the  party  executing  them  is  a  competent  witness  to 
prove  their  payments,  or  any  other  person  who  saw  the 
payments  made. — Ford  v.  Smith,  5  Cal.  314. 

Texas.  Payment  of  taxes  may  be  testified  to  by  any  per- 
son who  knows  as  a  fact  that  they  were  paid. — Sullivan  v. 
Fant,  (Tex.  Civ.  App.),  160  S.  W.  612. 

Washington.  Payment  of  a  license  fee  by  a  Corporation 
may  be  proved  by  parol. — William  A.  Eastman  &  Co.  v. 
Watson,  72  Wash.  522,  130  P.  1144. 

Testimony  of  One   Having  Actual   Knowledge  of  the   Facts 
Recorded. 

Idaho.  A  mining  partnership  may  be  proved  by  satisfac- 
tory parol  evidence. — Mayhew  v.  Burke,  2  Ida.  1056,  29 
P.  106. 

Oregon.  A  memorandum  is  but  secondary  evidence  of  the 
facts  of  which  it  speaks,  the  primary  evidence  being  the 
knowledge  of  the  witness,  and  the  memorandum  is  not 
admissible  either  as  an  auxiliary  or  as  an  aid  to  the  mind 
in  speaking  from  it,  when  the  witness  cannot  speak  from 
a  knowledge  of  the  facts,  or  from  present  recollection 
thereof. — Manchester  Assur.  Co.  v.  Oregon  R.  &  Nav.  Co., 
46   Or.   162,  79   P.   60. 

Texas.  Information  by  the  conductor  of  a  train  on  which 
horses  were  shipped  as  to  when  it  was  due  at  a  certain 
destination  is  admissible  as  against  an  objection  that  it 
was  not  the  best  evidence. — Missouri  Pac.  Ry.  Co.  v.  Fagan, 
72  Tex.  127,  9  S.  W.  749. 

The  form  and  contents  of  orders  for  goods  given  by  a 
tenant,  to  be  charged  to  the  landlord,  are  not  better  evi- 
dence of  the  fact  that  they  were  given  by  the  tenant  and 
that  supplies  were  furnished  thereon  than  the  testimony 
of  a  witness  having  knowledge  of  the  fact. — Neblett  v. 
Barron,   (Tex.  Civ.  App.),  160  S.  W.  1167. 


DOCUMENTS  541 

An  ex-manager  of  defendants  may  testify  that  on  behalf 
of  his  employers  he  sent  to  purchasers  letters  of  confirm- 
ation of  sales  made  by  plaintiff.— E.  R.  &  D.  C.  Kolp  v. 
Brazer,    (Tex.  Civ.  App.),  161  S.  W.  899. 


Article  64. 
primary  evidence. 

Primary  evidence  means  the  document  itself 
produced  for  the  inspection  of  the  Court,  accom- 
panied by  the  production  of  an  attesting  witness 
in  cases  in  which  an  attesting  witness  must  be 
called  under  the  provisions  of  articles  66  and  67 ; 
or  an  admission  of  its  contents  proved  to  have 
been  made  by  a  person  whose  admissions  are  rele- 
vant under  articles  15-20.  (a) 

Where  a  document  is  executed  in  several  parts, 
each  part  is  primary  evidence  of  the  document : 

Where  a  document  is  executed  in  counterpart, 
each  counterpart  being  executed  by  one  or  some 
of  the  parties  only,  each  counterpart  is  primary 
evidence  as  against  the  parties  executing  it.   (b) 

Where  a  number  of  documents  are  all  made  by 
printing,  lithography,  or  photography,  or  any 
other  process  of  such  a  nature  as  in  itself  to  se- 
cure uniformity  in  the  copies,  each  is  primary 
evidence  of  the  contents  of  the  rest ;  (c)  but  where 

(a)  Slatterie  v.   Pooley,   6  M.  &  W.   664. 

(b)  Roe  d.  West  v.   DaviB,  T  Ba.  362. 

(c)  R.  v.  Watson,  2  Star.  129.  This  case  was  decided  long 
before  the  invention  of  photography;  but  the  judgments  de- 
livered by  the  Court  (Ellenborough,  C.  J.,  and  Abbott,  Bay- 
ley,  and  Holroyd,  JJ.)  established  the  principle  stated  in  the 
text. 


542  DOCUMENTS 

they  are  all  copies  of  a  common  original,  no  one 
of  them  is  primary  evidence  of  the  contents  of 
the  original,  (d) 

PRIMARY   EVIDENCE. 

Where  different  impressions  of  a  Avriting  are  produced 
by  placing  carbon  paper  between  the  sheets  of  paper  and 
writing  upon  the  exposed  surface,  the  different  sheets 
are  duplicate  originals,  which,  if  otherwise  competent, 
may  be  introduced  in  evidence,  without  accounting  for  the 
nonproduction  of  the  others. — Engles  v.  Blocker,  (Ark.), 
192  S.  W.  193;  Wilkes  v.  S.  V.  Clark  Coal  &  Grain  Co.,- 95 
Kan.  493,  148  P.  768;  Matson  v.  Glen  Lumber  Co.,  (Okl.), 
163  P.  128. 

Arkansas.  Where  an  instrument  is  executed  in  duplicate, 
each  party  receiving  one  of  the  copies,  both  are  originals. 
—Jones  v.  Hoard,  59  Ark.  42,  26  S.  W.  193. 

Kansas.  Carbon  impressions  made  at  the  same  time  are 
originals  and  either  is  admissible  in  evidence. — Wilkes  v. 
Clark  Coal  &  G.  Co.,  95  Kan.  493,  148  P.  768. 

Montana.  The  copy  of  a  telegram  sent  in  reply  to  another 
delivered  to  a  telegraph  company  for  transmission  is  the 
original  for  the  purposes  of  evidence,  the  one  delivered 
to  the  addressee  being  but  a  copy. — Bond  v.  Hurd,  31  Mont. 
314,  78  P.  582. 

New  Mexico.  Where  a  number  of  copies  are  printed  from 
the  same  type  at  the  same  time  and  by  the  same  process, 
they  are  all  originals,  and  each  is  primary  evidence  of  the 
contents  of  the  rest.— State  v.  Ogden,  20  N.  M.  636,  151 
P.  758. 


(d)  Noden  v.  Murray,  3  Camp.  224.  (A  duplicate  notarial 
instrument,  made  from  the  copy  in  the  book,  is  an  original. 
Geralopulo  v.  Wieler,  10  C.  B.  712.  Whether  a  broker's  entries 
in  his  book,  or  the  bought  and  sold  notes  which  he  issues, 
are  the  proper  primary  evidence,  is  not  agreed.  Sievewright 
v.  Archibald,  17  Q.  B.  115,  holds  the  former  to  be,  while 
Durell    v.    Evans,    1    H.    &   C.    174,   holds    that   the    latter   are.) 


DOCUMENTS.  543 

Texas.  Carbon  copy  of  letter  retained  by  writer  not  ad- 
missible without  accounting  for  the  nonproduction  of  the 
original. — McDonald  v.  Hanks,  52  Tex.  Civ.  App.  140,  113 
S.  W.  604. 

Carbon  copies  of  letters  alleged  to  show  a  contract  by 
correspondence  are  not  admissible  as  primary  evidence. — 
Walsh  v.  Methodist  Epis.  Church,  (Tex.  Civ.  App.),  173 
S.   W.   241. 

Utah.  The  different  numbers  or  impressions  of  a  writing 
produced  by  placing  carbon  paper  between  the  sheets  of 
paper  and  writing  upon  the  exposed  surface  are  duplicate 
originals  and  either  may  be  introduced  in  evidence  with- 
out accounting  for  the  nonproduction  of  the  other. — De- 
Michele  v.  London  &  Lancashire  Fire  Ins.  Co.,  40  Utah  312, 
120  P.  846. 

Washington.  At  a  former  trial  a  witness  had  testified 
that  a  photograph  had  been  taken  of  the  scene  of  a  wreck, 
that  she  never  saw  it,  but  was  shown  a  newspaper  clip- 
ping of  a  picture  that  purported  to  be  a  scene  of  the  wreck 
and  said  that  it  was  a  reasonably  correct  representation. 
At  the  instant  trial  she  could  not  be  produced  as  a  witness, 
but  it  was  stipulated  that  her  testimony  at  the  former  trial 
might  be  read.  While  it  was  being  read  it  appeared  that 
the  clipping  which  the  witness  had  identified  was  not  with 
the  testimony,  but  was  in  the  files  of  the  appellate  court. 
Another  clipping  was  offered  in  evidence  and  was  rejected, 
it  not  having  been  shown  that  it  was  cut  from  the  same 
edition  of  the  newspaper  from  which  the  other  had  been, 
and  not  to  be  an  exact  duplicate  thereof. — Pantages  v. 
Seattle  Elec.  Co.,  63  Wash.  159,  114  P.  1044. 

Article  65. 

l-Kticii    in    DOCUMENTS   OT   1'i:i\i\i:y    i:\  idknce. 

The  contents  of  documents  must,  except  in  the 
cases  mentioned  in  article  71,  be  proved  by  pri- 
mary evidence;  and  in  the  cases  mentioned  in 
article  66  by  calling  an  attesting  witness. 

See  Article  63.   supra. 


544  DOCUMENTS 

Article  66.* 

proof  of  execution   of  document  required  by  law   to  be 
attested. 

If  a  document  is  required  by  law  to  be  attested, 
it  may  not  be  used  as  evidence  (except  in  the 
cases  mentioned  or  referred  to  in  the  next  arti- 
cle) if  there  be  an  attesting  witness  alive,  sane, 
and  subject  to  the  process  of  the  Court,  until  one 
attesting  witness  at  least  has  been  called  for  the 
purpose  of  proving  its  execution. 

If  it  is  shown  that  no  such  attesting  witness  is 
alive  or  can  be  found,  it  must  be  proved  that  the 
attestation  of  one  attesting  witness  at  least  is  in 
his  handwriting,  and  that  the  signature  of  the 
person  executing  the  document  is  in  the  handwrit- 
ing of  that  person. 

The  rule  extends  to  cases  in  which — 
the    document    has    been    burnt    (a)    or    can- 
celled; (b) 

the  subscribing  witness  is  blind ;  (c) 
the  person  by  whom  the  document  was  executed 
is  prepared  to  testify  to  his  own   execution   of 
it,   (d) 

the  person  seeking  to  prove  the  document  is 
prepared  to  prove  an  admission  of  its  execution 
by  the  person  who  executed  it,  even  if  he  is  a 

(a)  Gillies  v.   Smither,   2   Star.   R.  528. 

(b)  Breton   v.    Cope,    Pea.    R.    43. 

(c)  Cronk  v.   Frith,   9   C.   &  P.   197. 

(d)  R.  v.   Harringworth,   4  M.  &  S.   353. 

♦See  note  at  end  of  article   67. 


DOCUMENTS  545 

party  to  the  cause,  (e)  unless  such  admission  be 
made  for  the  purpose  of,  or  has  reference  to,  the 
cause. 

PROOF  OF  EXECUTION  BY  ATTESTING  WITNESSES. 

That  part  of  the  common  law  rule  which  prefers  proof 
of  the  signature  of  the  attesting  witness  to  that  of  the 
maker  has  not  been  universally  accepted,  whether  the 
document  be  one  that  requires  attestation,  or  in  fact  is 
attested,  though  not  required  to  be.  Some  courts  have 
maintained  the  admissibility  of  proof  of  the  maker's  hand- 
writing directly  upon  its  appearing  that  the  testimony  of 
the  witness  cannot  be  had. — White  v.  Holliday,  20  Tex. 
679;  Mapes  v.  Leal,  27  Tex.  345;  Lapowski  v.  Taylor,  13 
Tex.  Civ.  App.  624,  35  S.  W.  934;  Boswell  v.  First  Nat. 
Bank,  16  Wyo.  161,  92  P.  624. 

North  Dakota.  The  execution  of  a  chattel  mortgage  being 
put  in  issue,  plaintiff,  to  prove  the  same,  testified  himself 
to  the  execution  thereof  by  the  mortgagor;  but  he  did  not 
call  the  subscribing  witnesses,  or  prove  that  they  were 
dead  or  resided  out  of  the  state,  or  that  any  effort  had 
been  made  to  secure  their  testimony.  Held,  under  the 
common  law  rule  relating  to  proof  of  instruments  to  which 
there  are  subscribing  witnesses,  and  our  statutes  applicable 
to  such  a  case,  the  plaintiff  has  failed  to  prove  the  execu- 
tion of  the  chattel  mortgage  by  the  best  evidence. — Bryn- 
jolfson  v.  Northwestern  Elevator  Co.,  6  N.  D.  450,  71  N. 
W.  555. 

Wyoming.  By  the  strict  rule  of  the  common  law,  the  pri- 
mary or  best  evidence  to  prove  the  execution  of  a  deed 
or  other  private  writing  having  a  subscribing  witness  is 
generally  the  testimony  of  such  witness,  if  available,  or, 
if  not,  then  proof  of  his  handwriting  if  that  be  feasible. 
If  neither  the  testimony  of  the  attesting  witness  nor  proof 
of  his  handwriting  be  attainable,  then  it  is  competent  to 

(e)  Call  v.  Dunning,  4  Ea.  53.  See,  too,  Whyman  v.  Garth, 
8  Ex.  803;  Randall  v.   Lynch,   2  Camp.   357. 


546  DOCUMENTS 

prove  the  signature  of  the  grantor  or  maker  of  the  instru- 
ment, and  that  will  be  sufficient. — Boswe.ll  v.  First  Nat. 
Bank,  16  Wyo.  161,  92  P.  624. 

NECESSITY  OF  TESTIMONY  OF  ATTESTING  WITNESS. 

As  to  wills,  the  procedure  of  showing  execution  by  at- 
testing witnesses  is  regulated  by  statute.  See  2  Wigmore 
Ev.,  §  1304. 

Arkansas.  An  attesting  witness  is  unnecessary,  when  the 
deed  has  been  acknowledged  by  the  grantor. — Cocke  v. 
Brogan,  5  Ark.  693. 

The  testimony  of  a  subscribing  witness  must  be  had  if 
obtainable  to  prove  the  execution  of  an  instrument. — 
Brock  v.  Saxton,  5  Ark.  708;  Hutchinson  v.  Kelly,  10  Ark. 
178. 

California.  The  execution  of  an  instrument  must  be 
proved  by  the  testimony  of  the  subscribing  witness,  if  pos- 
sible.—Stevens  v.  Irwin,   12  Cal.   306. 

Nevada.  The  execution  of  an  instrument  must  be  proved 
by  the  testimony  of  a  subscribing  witness,  if  possible.  The 
admission  of  the  adverse  party  that  he  executed  the  instru- 
ment does  not  dispense  with  this  proof. — Kalmes  v.  Ger- 
rish,  7  Nev.  31. 

Oregon.  The  statute  requires  proof  of  the  execution  of  an 
instrument  by  calling  a  subscribing  witness  if  there  be  one 
living  within  the  state.  If  dead  or  out  of  the  state  or  in- 
capable of  testifying,  proof  of  his  handwriting  is  sufficient, 
and  such  statute  is  mandatory. — Hannan  v.  Greenfield,  36 
Or.  97,  58  P.  888. 

Texas.  The  execution  of  an  instrument  must  be  proved 
by  the  testimony  of  the  subscribing  witness,  if  possible. — 
Craddock  v.  Merrill,  2  Tex.  494;  Grainer  v.  Cotton,  49  Tex. 
101;  International  &  G.  N.  Ry.  Co.  v.  McRae,  82  Tex.  614, 
18  S.  W.  672;  Harris  v.  Hoskins,  2  Tex.  Civ.  App.  486,  22 
S.  W.  251;  Smith  v.  Dunman,  9  Tex.  Civ.  App.  319,  29  S. 
W.  432;  Lewis  v.  Bell,   (Tex.  Civ.  App.),  40  S.  W.  747. 

A  grantor  who  is  not  interested  in  the  event  of  the  suit 
may  testify  in  proof  of  the  execution  of  the  instrument 
without  accounting  for  the  attesting  witness. — White  v. 
Holliday,  20  Tex.  679. 


DOCUMENTS  547 

The  admission  of  the  adverse  party  that  he  executed  the 
instrument  does  not  dispense  with  the  testimony  of  the 
subscribing  witnesses. — Wiggins  v.  Fleishel,  50  Tex.  57. 

UNAVAILABILITY   OF   ATTESTING   WITNESSES. 

As  to  what  shall  be  considered  a  sufficient  cause  of  un- 
availability of  attesting  witnesses  so  as  to  permit  the 
proof  of  execution  otherwise,  statutes  have  frequently  leg- 
islated, especially  as  to  wills.     (2  Wigmore  Ev.,   §   1310.) 

The  testimony  of  an  attesting  witness  who  is  beyond 
the  jurisdiction  of  the  court  is  universally  regarded  as  un- 
available, and  proof  of  that  fact  lets  in  secondary  evidence 
of  the  execution  of  the  document: 

Arkansas:  Wilson  v.  Royston,  2  Ark.  315;  Tatum  v.  Mohr, 
21  Ark.  349. 

California:  Stevens  v.  Irwin,  12  Cal.  306;  McGarrity  v. 
Byington,  12  Cal.  426. 

Nebraska:  Buchanan  v.  Wise,  34  Neb.  695,  52  N.  W.  163; 
Jewell  v.  Chamberlain,  41  Neb.  254,  59  N.  W.  784. 

Texas:  Lapowski  v.  Taylor,  13  Tex.  Civ.  App.  624,  35  S. 
W.  934;  Frazier  v.  Moore,  11  Tex.  755. 

Oregon.  To  prove  the  execution  of  an  instrument  the  sub- 
scribing witness  must  be  called,  if  possible;  if  he  cannot 
be  had,  proof  of  his  handwriting  and  that  of  the  party  is 
sufficient. — Hannan  v.  Greenfield,  36  Or.  97,  58  P.  888. 
Texas.  Where  the  attesting  witness  is  a  nonresident,  sec- 
ondary evidence  of  the  execution  of  the  instrument  may  be 
received.— Lapowski  v.  Taylor,  13  Tex.  Civ.  App.  624,  35 
S.  W.  934. 

Wyoming.  The  fact  of  execution  and  attestation  of  an  in- 
strument abroad  gives  rise  to  the  presumption  that  proof 
of  the  handwriting  of  the  attesting  witness  is  not  attain- 
able within  the  jurisdiction,  so  that  in  such  event  it  is  not 
incumbent  upon  the  party  offering  the  instrument  to  show 
otherwise  that  diligent  and  unsuccessful  search  had  been 
made  for  proof  of  such  handwriting.— Boswell  v.  First  Nat. 
Bank,  16  Wyo.  161,  92  P.  624. 


548  DOCUMENTS 

An  attesting  witness  who  is  not  within  the  jurisdiction 
of  the  court  is  universally  regarded  as  unavailable,  and 
proof  of  that  fact  lets  in  secondary  evidence  of  the  con- 
tents of  the  instrument;  and  it  is  equally  well  settled  that, 
where  the  execution  and  attestation  occurred  out  of  the 
jurisdiction,  it  is  to  be  presumed,  at  least  in  the  absence 
of  contrary  evidence,  that  the  subscribing  witness  is  out 
of  the  jurisdiction  at  the  time  of  trial. — Boswell  v.  First 
Nat.  Bank,  16  Wyo.  161,  92  P.  624. 

PROOF   OF    EXECUTION. 

Where  the  attesting  witness  is  beyond  the  jurisdiction 
of  the  court,  his  handwriting  must  be  proved  to  entitle 
the  document  to  be  admitted  in  evidence. — Wilson  v.  Roys- 
ton,  2  Ark.  315;  Nicks  v.  Rector,  4  Ark.  251;  Brock  v. 
Saxton,  5  Ark.  708;  Tatum  v.  Mohr,  21  Ark.  349;  Delony 
v.  Delony,  24  Ark.  7;  Stevens  v.  Irwin,  12  Cal.  306;  McGar- 
rity  v.  Byington,  12  Cal.  426. 

California.  Where  a  deed  attested  by  witnesses  is  lost, 
those  appearing  to  be  attesting  witnesses  by  a  copy  there- 
of should  be  called  if  available. — Smith  v.  Brannan,  13  Cal. 
107,  115. 

To  make  a  copy  of  an  unrecorded  deed  evidence,  the 
loss  of  the  original  being  shown,  the  testimony  of  the  sub- 
scribing witnesses  to  the  deed,  if  such  there  be,  should 
be  had,  at  least  to  the  fact  of  the  execution  of  the  paper, 
unless  they  are  shown  to  be  without  the  jurisdiction  of 
the  court. — Smith  v.  Brannan,  13  Cal.  107. 

When  the  subscribing  witness  to  a  written  instrument 
is  beyond  the  jurisdiction  of  the  court,  such  instrument 
is  admissible  in  evidence  upon  proof  of  the  signature  of 
the  grantor  or  obligor,  without  proving  the  handwriting 
of  the  subscribing  witness,  unless  the  instrument  is  one 
which  the  law  requires  to  be  attested  by  witnesses,  in 
which  case  proof  of  the  handwriting  of  both  parties  and 
subscribing  witnesses  might  be  necessary.— Landers  v. 
Bolton,  26  Cal.  393. 

Where  a  conveyance  not  acknowledged  is  offered  in  evi- 
dence,  and  it  was   proved   that   it  was   executed   by  the 


DOCUMENTS  549 

grantor  and  witnessed  by  subscribing  witnesses  out  of  the 
state,  and  there  is  no  evidence  to  show  that  the  subscrib- 
ing witnesses  were  ever  in  the  state,  a  sufficient  presump- 
tion is  raised  that  the  subscribing  witnesses  are  not  with- 
in the  jurisdiction  of  the  court  to  let  in  secondary  evidence 
of  its  execution  by  the  grantor. — Landers  v.  Bolton,  26 
Cal.  393. 

If  the  evidence  of  the  attesting  witness  is  unavailable, 
proof  of  the  handwriting  of  the  maker,  or  proof  of  execu- 
tion by  him  is  sufficient. — Landers  v.  Bolton,  26  Cal.  395; 
McMinn  v.  O'Connor,  27  Cal.  238;  McMinn  v.  Whelan,  27 
Cal.  300. 

Nebraska.  Where  the  subscribing  witness  is  beyond  the 
jurisdiction  of  the  court,  the  execution  of  an  instrument 
may  be  proved  by  others. — Buchanan  v.  Wise,  34  Neb.  695, 
52  N.  W.  163;  Jewell  v.  Chamberlain,  41  Neb.  254,  59  N. 
W.  784. 

Oklahoma.  Instruments  executed,  acknowledged  and  at- 
tested according  to  law  may  be  read  in  evidence  without 
further  proof  of  execution.— Comp.  Laws   (1909),  §  1209. 

Oregon.  Where  the  attesting  witness  cannot  be  produced 
his  handwriting  as  well  as  that  of  the  party  must  be 
proved.—  Hannan  v.  Greenfield,  36  Or.  103,  58  P.  888; 
Columbia  Valley  Trust  Co.  v.  Smith,  56  Or.  6,  107  P.  465; 
Marks  v.  Wilson,  72  Or.  5,  143  P.  906. 

Texas.  Where  a  subscribing  witness  is  incompetent  to 
act  as  such,  he  is  also  incompetent  to  prove  the  execution 
of  the  deed.— Hardin  v.  Sparks,  70  Tex.  429,  7  S.  W.  769. 

Where  an  original  deed  had  been  on  file  three  days 
before  trial  and  no  objection  had  been  made,  due  execution 
of  such  deed  as  altered  will  be  presumed  under  Sayles' 
Civ.  St.,  Art.  2257.— House  v.  Robertson,  (Tex.  Civ.  App.), 
34  S.  W.  640. 

Proof  of  the  execution  of  letters  by  the  writer  is  a  pre- 
requisite to  their  admission. — Quanah,  A.  &  S.  Ry.  Co.  v. 
Drummond,  (Tex.  Civ.  App.),  147  S.  W.  728. 


550  DOCUMENTS 

Article  67.* 
cases  in  which  attesting  witness  need  not  be  called. 

In  the  following  cases,  and  in  the  case  men- 
tioned in  article  88,  but  in  no  others,  a  person 
seeking  to  prove  the  execution  of  a  document  re- 
quired by  law  to  be  attested  is  not  bound  to  call 
for  that  purpose  either  the  party  who  executed 
the  deed  or  any  attesting  witness,  or  to  prove  the 
handwriting  of  any  such  party  or  attesting  wit- 
ness— 

(1)  When  he  is  entitled  to  give  secondary  evi- 
dence of  the  contents  of  the  document  under  ar- 
ticle 71  (a)  ;  (a) 

(2)  When  his  opponent  produces  it  when 
called  upon  and  claims  an  interest  under  it  in 
reference  to  the  subject-matter  of  the  suit;  (b) 

(3)  When  the  person  against  whom  the  doc- 
ument is  sought  to  be  proved  is  a  public  officer 
bound  by  law  to  procure  its  due  execution,  and 
who  has  dealt  with  it  as  a  document  duly  exe- 
cuted,  (c) 

(a)  Cooper  v.  Tamswell,  8  Tau.  450;  Poole  v.  Warren,  8 
A.   &  E.    588. 

(b)  Pearce  v.  Hooper,  3  Tau.  60;  Rearden  v.  Minter,  5  M. 
&  G.  204.  As  to  the  sort  of  interest  necessary  to  bring  a 
case  within  this  exception,  see  Collins  v.  Bayntun,  1  Q.  B. 
118;  Jackson  v.  Kingsley,  17  Johns.  158;  McGregor  v.  Wait, 
10  Gray  72. 

(c)  Plumer  v.  Brisco,  11  Q.  B.  46.  Bailey  v.  Bidwell,  13 
M.  &  W.  73,  would  perhaps  justify  a  slight  enlargement  of 
the  exception,  but  the  circumstances  of  the  case  were  very 
peculiar.  Mr.  Taylor  (ss.  1650-1651)  considers  it  doubtful 
whether   the  rule  extends   to   instruments   executed  by  corpo- 

*See  note  at  end  of  article. 


DOCUMENTS  551 

(4)  [When  the  instrument  is  only  incidentally 
in  issue.] 

(5)  [Under  numerous  statutory  enactments, 
deeds  acknowledged  as  provided  by  law  are  ad- 
missible without  further  proof  of  execution.]  (d) 

WHEN   ATTESTING  WITNESS   NOT   CALLED. 

Instruments  Collaterally  Involved. 
Colorado.  When  the  validity  of  an  instrument  is  not  in 
issue,  it  may  be  introduced  in  evidence  and  the  execution 
proved  by  any  competent  evidence.  The  attesting  witness 
need  not  be  called.  (Forcible  entry  and  detainer  to  re- 
cover possession  on  apparent  title  derived  through  trus- 
tee's deed,  answer  not  attacking  validity  of  deed.  Whether 
certificate  of  acknowledgment  was  sufficient  to  prove  exe- 
cution, immaterial.) — Smith  v.  Soper,  12  Colo.  App.  264, 
55  P.   195. 

Dakota.  When  an  instrument  is  used  collaterally,  sec- 
ondary evidence  is  admissible,  and  it  is  not  necessary 
to  call  the  subscribing  witnesses.  (Prosecution  for  false 
pretenses  by  assignment  of  fictitious  mortgage  and  note. 
Mortgage  admissible  without  production  of  subscribing 
witnesses.)— Territory  v.  Ely,  6  Dak.  128,  50  N.  W.  623. 
Texas.  Conveyances  not  forming  the  basis  of  the  action, 
but  merely  proof  of  collateral  matters,  may  be  proved  by 
parol.  (Action  by  children  of  first  wife  against  second 
wife  of  deceased  father  for  rights  under  mutual  wills  of 
their  father  and  mother.  Testimony  of  a  daughter  that 
her  mother  gave  a  one-half  interest  in  certain  lands  to 
witness'  uncle  for  his  half  interest  in  other  lands,  admis- 
sible.)—Larrabee  v.  Porter,  (Tex.  Civ.  App.),  166  S.  W. 
395. 

rations,  or  to  deeds  enrolled  under  the  provisions  of  any  Act 
of    Parliament,    but    his    authorities    hardly    seem    to    support 
his   view;    at   all    events,   as   to   deeds   by   corporations.     Scott 
v.   Waithman,    3    Starkie,   N.    P.    168. 
(d)    [3   Wigmore  Ev.,    §    1676.] 


552  DOCUMENTS 

ACKNOWLEDGMENT  OF   INSTRUMENTS. 

Purpose  and  Effect. 
California.     The   purpose   of   a    certificate   of   acknowledg- 
ment is  to  entitle  the  deed  to  be  recorded,  and  to  be  ad- 
mitted in  evidence  without  further  proof  of  execution. — 
Pogarty  v.  Finlay,  10  Cal.  239. 

The  acknowledgment  of  a  deed  is  an  admission  by  the 
grantor  that  it  is  his  act  and  deed. — Blaisdell  v.  Leach, 
101  Cal.  405,  35  P.  1019. 

Idaho.  A  proper  acknowledgment  is  as  good  a  witness  to 
a  signature  by  mark  as  if  the  person  taking  the  acknowl- 
edgment had  written  his  name  at  the. foot  of  the  document 
as  a  witness  to  a  signature  by  mark. — -First  Nat.  Bank 
v.  Glenn,  10  Ida.  224,  77  P.  623. 

The  person  whose  name  appears  on  an  instrument,  by 
his  own  acknowledgment  properly  taken,  admits  such 
name  and  the  execution  of  the  instrument  as  his  own 
name  and  act,  and  such  admission  is  legal  evidence  of  the 
fact.— First  Nat.  Bank  v.  Glenn,  10  Ida.  224,  77  P.  623. 
Kansas.  The  certificate  of  acknowledgment  is  prima  facie 
evidence  of  due  execution. — Wright  v.  Bacheller,  16  Kan. 
259;  Wilkins  v.  Moore,  20  Kan.  538. 

Nebraska.  The  office  of  an  acknowledgment  is  to  entitle 
an  instrument  to  record  and  to  permit  its  admission  in 
evidence  without  further  proof  of  execution. — Burbank  v. 
Ellis,  7  Neb.  156;  Horbach  v.  Tyrrell,  48  Neb.  514,  67  N. 
W.  485,  489;   Linton  v.  Cooper,  53  Neb.  400,  73  N.  W.  731. 

As  Proof  of  Execution. 

Arizona.  An  instrument  executed,  acknowledged  and  at- 
tested according  to  law  may  be  read  in  evidence  without 
further  proof  of  execution. — Epperson  v.  Crozier,  10  Ariz. 
30  85  P.  482. 

California.  Private  writings,  except  wills,  may  be  ac- 
knowledged or  proved  and  certified,  and  the  certificate  of 
acknowledgment  is  prima  facie  evidence  of  execution. — 
Fogarty  v.  Finlay,  10  Cal.  239;  Landers  v.  Bolton,  26  Cal. 
393;    Wetherbee    v.    Dunn,  32  Cal.  106;  Wedel  v.  Hennan, 


DOCUMENTS  553 

59  Cal.  507;  Anthony  v.  Chapman,  65  Cal.  73,  2  P.  889; 
Moore  v.  Hopkins,  83  Cal.  270,  23  P.  318;  Eltzroth  v.  Ryan, 
89  Cal.  135,  26  P.  647;  Purser  v.  Eagle  Lake  Land  &  Irr. 
Co.,  Ill  Cal.  139,  43  P.  523;  McGorray  v.  Robinson,  135 
Cal.  312,  67  P.  279;  Adams  v.  Hopkins,  144  Cal.  19,  77  PI 
712. 

Instruments  acknowledged  or  proved  and  certified  ac- 
cording to  law,  may,  together  with  the  certificate  of  ac- 
knowledgment or  proof,  be  read  in  evidence  without 
further  proof.  Also  the  original  record  or  a  certified  copy 
thereof. — Landers  v.  Bolton,  26  Cal.  393;  Murray  v.  Tulare 
I.  Co.,  120  Cal.  311,  49  P.  563;  McGorray  v.  Robinson,  135 
Cal.  312,  67  P.  279;  McDougall  v.  McDougall,  135  Cal.  316, 
67  P.  778. 

Colorado.  The  acknowledgment  of  an  instrument  is  a 
means  of  proving  its  execution. — Holladay  v.  Dailey,  1 
Colo.  460;  Owers  v.  Olathe  Silver  Min.  Co.,  6  Colo.  App.  1, 
39  P.  980. 

A  properly  acknowledged  deed  may  be  read  in  evidence 
without,  in  the  first  instance,  additional  proof  of  execution. 
—Knight  v.  Lawrence,  19  Colo.  425,  36  P.  242. 

Instruments  acknowledged  or  proved  in  accordance  with 
law  of  the  state,  or  the  local  laws  of  a  mining  district,  may 
be  read  in  evidence  without  additional  proof  of  execution. 
—McAllister  v.  People,  28  Colo.  156,  63  P.  308. 
Kansas.  Instruments  executed,  acknowledged  and  at- 
tested according  to  law  may  be  read  in  evidence  without 
further  proof  of  execution. — Simpson  v.  Mundee,  3  Kan. 
172;  Bernstein  v.  Smith,  10  Kan.  60;  Williams  v.  Hall,  16 
Kan.  23;  Wright  v.  Bacheller.  16  Kan.  259;  Wilkins  v. 
Moore,  20  Kan.  538;  Stratton  v.  Hawks,  43  Kan.  538,  23 
P.  591;  Andrews  v.  Reed,  57  Kan.  912,  48  P.  29. 

A  properly  acknowledged  deed  may  be  read  in  evidence 
without  further  proof  of  execution. — Wilkins  v.  Moore, 
20  Kan.  538. 

Montana.  The  modern  statutes  relating  to  acknowledg- 
ment of  instruments  have  changed  the  common  law  method 
of  proof  of  execution.— First  Nat.  Bank  v.  Roberts,  9  Mont. 
323,  23  P.  718. 


554  DOCUMENTS 

Nebraska.  Instruments  executed,  acknowledged  and  at- 
tested according  to  law  are  admissible  in  evidence  without 
further  proof  of  execution. — Burbank  v.  Ellis,  7  Neb.  156; 
First  Nat.  Bank  v.  Ridpath,  47  Neb.  96,  66  N.  W.  37;  Hor- 
bach  v.  Tyrrell,  48  Neb.  514,  67  N.  W.  485;  Thams  v. 
Sharp,  49  Neb.  237,  68  N.  W.  474;  Dorsey  v.  Conrad,  49 
Neb.  443,  68  N.  W.  645;  Linton  v.  Cooper,  53  Neb.  400,  73 
N.  W.  731;  McKenzie  v.  Beaumont,  70  Neb.  179,  97  N.  W. 
225. 

North  Dakota.  Instruments  executed,  acknowledged  and 
attested  according  to  law  may  be  read  in  evidence  without 
further  proof  of  execution.— Brynjolfson  v.  Northwestern 
Elevator  Co.,  6  N.  D.  450,  71  N.  W.  555;  Grandin  v.  Em- 
mons, 10  N.  D.  223,  86  N.  W.  723. 

Oklahoma.  A  properly  acknowledged  deed  may  be  read 
in  evidence  without  further  proof  of  execution,  though  the 
execution  be  denied  under  oath. — Dyal  v.  Norton,  (Okl.), 
150  P.  703. 

The  acknowledgment  to  a  deed  is  sufficient  attestation 
of  the  signature  of  a  witness  signing  by  mark. — Campbell 
v.  Harsh,  31  Okl.  436,  122  P.  127;  Hilsmeyer  v.  Blake,  34 
Okl.  477,  125  P.  1129;  Dyal  v.  Norton,  (Okl.),  150  P.  703. 

Oregon.  Instruments  executed,  acknowledged  and  attested 
according  to  law  may  be  read  in  evidence  without  further 
proof  of  execution. — Watson  v.  Dundee  M.  &  T.  Inv.  Co., 
12  Or.  480,  8  P.  548;  Stanley  v.  Smith,  15  Or.  508,  16  P.  174. 
South  Dakota.  Instruments  executed,  acknowledged  and 
attested  according  to  law  may  be  read  in  evidence  without 
further  proof  of  execution. — State  v.  Serenson,  7  S.  D.  277, 
64  N.  W.  130;  Northwestern  Loan  &  B.  Co.  v.  Jonasen,  11 
S.  D.  566,  79  N.  W.  840;  Connor  v.  Corson,  13  S.  D.  550, 
83  N.  W.  588;  Bliss  v.  Waterbury,  27  S.  D.  429,  131  N.  W. 
731. 

Utah.  Instruments  executed,  acknowledged  and  attested 
according  to  law  are  admissible  in  evidence  without  further 
proof  of  execution.  Private  writings,  when  acknowledged, 
are  prima  facie  proof  of  due  execution. — Bullion-B.  &  C. 
M.  Co.  v.  Eureka  Hill  M.  Co.,  5  Utah  3,  11  P.  515. 


DOCUMENTS  555 

Washington.  A  certified  copy  of  a  mortgage  from  the  rec- 
ords of  the  county  auditor's  office  is  admissible  in  evidence 
without  further  proof  of  execution  than  the  acknowledg- 
ment thereon. — Howard  v.  Gemming,  10  Wash.  30,  38  P. 
766. 

An  original  instrument  with  a  certificate  of  acknowledg- 
ment in  due  form  is  prima  facie  proof  of  execution. — 
Blewett  v.  Bash,  22  Wash.  536,  61  P.  770. 
Wyoming.  Instruments  executed,  acknowledged  and  at- 
tested according  to  law  are  admissible  in  evidence  without 
further  proof  of  execution. — Boswell  v.  First  Nat.  Bank, 
16  Wyo.  161,  92  P.  624. 

Imperfections  In,  or  Lack  of,  Acknowledgment. 

Documents  which  are  required  to  be  acknowledged,  to 
which  no  acknowledgment  is  appended,  or  so  defectively 
acknowledged  as  to  amount  to  a  nullity,  require  proof  of 
execution  before  being  admissible  in  evidence.  In  such 
cases  the  common  law  rule  generally  prevails  as  to  the 
mode  of  proof: 

California:  Fogarty  v.  Finlay,  10  Cal.  239;  Landers  v. 
Bolton,  26  Cal.  393;  Fresno  Canal  &  Irr.  Co.  v.  Dunbar,  80 
Cal.  530,  22  P.  275. 

Colorado:     McGinnis  v.  Egbert,  8  Colo.  41,  5  P.  652;  Trow- 
bridge v.  Addoms,  23  Colo.  518,  48  P.  535;    Milwaukee  G. 
M.  Co.  v.  Tomkins-Christy,  26  Colo.  App.  155,  141  P.  527; 
Owers  v.  Olathe  Silver  Min.  Co.,  6  Colo.  App.  1,  39  P.  980. 
Kansas:      Rullman  v.  Barr,  54  Kan.  643,  39  P.  179. 
Nebraska:      Kittle  v.  St.  John,  10  Neb.  605,  7  N.  W.  271; 
Linton  v.  Cooper,  53  Neb.  400,  73  N.  W.  771. 
Nevada:     Kalmes  v.  Gerrish,  7  Nev.  31. 
North   Dakota:     Brynjolfson  v.  Northwestern  Elev.  Co.,   6 
N.   D.  450,  71  N.  W.   555. 

Texas:  McLane  v.  Canales,  (Tex.  Civ.  App.),  25  S.  W.  29. 
Arizona.  A  bill  of  sale  of  cattle  is  admissible  in  evidence 
in  a  suit  for  conversion,  though  not  acknowledged  as  re- 
quired by  statute. — Epperson  v.  Crozier,  10  Ariz.  30,  85  P. 
482. 


556  DOCUMENTS 

California.  An  unacknowledged  instrument  or  one  defec- 
tively executed  or  acknowledged  must  be  proved  according 
to  the  ordinary  rules  of  law  applicable. — Fogarty  v.  Fin- 
lay,  10  Cal.  239;  Landers  v.  Bolton,  26  Cal.  393;  Fresno 
Canal  &  Irr.  Co.  v.  Dunbar,  80  Cal.  530,  22  P.  275. 

A  certificate  of  acknowledgment  is  only  prima  facie  evi- 
dence of  the  execution  of  the  writing,  and  may  be  contro- 
verted by  the  testimony  of  the  party  executing  the  docu- 
ment.—Moore  v.  Hopkins,  83  Cal.  270,  23  P.  318;  Le  Mes- 
nager  v.  Hamilton,  101  Cal.  532,  35  P.  1054. 

Colorado.  Further  proof  of  the  execution  of  a  deed,  be- 
fore it  will  be  admissible  in  evidence,  is  required,  where 
the  acknowledgment  is  not  properly  authenticated. — Mc- 
Ginnis  v.  Egbert,  8  Colo.  41,  5  P.  652. 

The  execution  of  an  unacknowledged  deed  must  be 
proved  according  to  the  rules  of  the  common  law. — Owers 
v.  Olathe  Silver  Min.  Co.,  6  Colo.  .App.  1,  39  P.  980. 

It  is  not  error  to  admit  a  defectively  acknowledged  deed 
in  evidence  over  the  objection  that  it  is  not  properly  ac- 
knowledged, where  there  is  no  objection  on  the  ground 
that  its  execution  was  not  otherwise  proved. — Lambert  v. 
Murray,  52  Colo.  156,  120  P.  415. 

Kansas.  A  deed,  the  certificate  of  acknowledgment  to 
which  is  without  a  seal,  is  not  entitled  to  record  and  hence 
the  record  of  such  an  instrument  is  inadmissible  in  evi- 
dence.—Meskimen  v.   Day,    35   Kan.   46,   10   P.   14. 

But  where  the  original  instrument  is  put  in  evidence 
without  special  exception  to  the  acknowledgment,  it  is 
competent. — Rullman  v.  Barr,   54  Kan.  643,  39  P.  179. 

A  certificate  of  acknowledgment  is  only  prima  facie  evi- 
dence of  the  execution  of  the  instrument,  and  may  be  im- 
peached by  parol. — People's  Gas  Co.  v.  Fletcher,  81  Kan.  76, 
105   P.   34. 

Montana.  The  fact  that  a  notary  taking  an  acknowledg- 
ment was  a  nephew  and  attorney  of  a  person  interested  in 
its  procurement  does  not  invalidate  it. — First  Nat.  Bank 
v.  Roberts,  9  Mont.  323,  23  P.  718. 


DOCUMENTS  557 

Nebraska.  An  unacknowledged  instrument  must  be 
proved  by  the  rules  of  the  common  law. — Kittle  v.  St.  John, 
10  Neb.  605,  7  N.  W.  271;  Linton  v.  Cooper,  53  Neb.  400, 
73  N.  W.  771. 

An  unacknowledged  instrument  cannot  be  admitted  as 
evidence  until  its  execution  is  proven. — Linton  v.  Cooper, 
53  Neb.  400,  73  N.  W.  731. 

The  omission  of  the  acknowledgment  to  an  instrument 
renders  it  invalid,  and  the  omission  cannot  be  supplied  by 
parol.— Solt  v.  Anderson,  71  Neb.  826,  99  N.  W.  678. 

Oklahoma.  A  palpable  clerical  error  in  the  acknowledg- 
ment of  a  deed  will  not  disqualify  the  instrument  as  evi- 
dence.—Mosier  v.  Momsen,  13  Okl.  41,  74  P.  905. 

Washington.  A  deed  properly  acknowledged  is  admissible 
in  evidence,  though  the  record  thereof  fails  to  show  any 
acknowledgment.— Gardner  v.  Port  Blakely  Mill  Co.,  8 
Wash.  1,  35  P.  402. 

NOTE    XXVIII. 
(To  Articles   66  and  67.) 

This  is  probably  the  most  ancient,  and  is,  as  far  as  it 
extends,  the  most  inflexible  of  all  the  rules  of  evidence.  The 
following  characteristic  observations  by  Lord-  Ellenborough 
occur  in  R.  v.  Harringworth,  4  M.  &  S.   353: 

"The  rule,  therefore,  is  universal  that  you  must  first  call 
the  subscribing  witness;  and  it  is  not  to  be  varied  in  each 
particular  case  by  trying  whether,  in  its  application,  it  may 
not  be  productive  of  some  inconvenience,  for  then  there 
would  be  no  such  thing  as  a  general  rule.  A  lawyer  who  is 
well  stored  with  these  rules  would  be  no  better  than  any 
other  man  that  is  without  them,  if  by  mere  force  of  specu- 
lative reasoning  it  might  be  shown  that  the  application  of 
such  and  such  a  rule  would  be  productive  of  such  and  such 
an  inconvenience,  and  therefore  ought  not  to  prevail;  but 
if  any  general  rule  ought  to  prevail,  this  is  certainly  one  that 
is  as  fixed,  formal,  and  universal  as  any  that  can  be  stated  in 
a  court  of  justice." 

In  Whyman  v.  Garth,  8  Ex.  807,  Pollock,  C.  B.,  said,  "The 
parties  are  supposed  to  have  agreed  inter  se  that  the  deed 
shall  not  be  given  in  evidence  without  his  [the  attesting  wit- 
ness] being  called  to  depose  to  the  circumstances  attending 
its  execution." 


558  DOCUMENTS 

In  very  ancient  times,  when  the  jury  were  witnesses  as 
to  matter  of  fact,  the  attesting  witnesses  to  deeds  (if  a  deed 
came  in  question)  would  seem  to  have  been  summoned  with, 
and  to  have  acted  as  a  sort  of  assessors  to,  the  jury.  See 
as  to  this,  Bracton,  fo.  38a;  Portescue  de  Laudibus,  ch.  xxxii, 
with  Selden's  note;  and  cases  collected  from  the  Year-books 
in  Brooke's  Abridgment,   tit.    Testmoignes. 

For  the  present  rule,  and  the  exceptions  to  it,  see  1  Ph. 
Ev.  242-261;  T.  E.  ss.  1637-1642;  R.  N.  P.  147-150;  Best,  ss. 
220,  &c;   [2  Wigmore  Ev.,   §§  1285-1321.] 

The  old  rule  which  applied  to  all  attested  documents  was 
restricted  to  those  required  to  be  attested  by  law,  by  17  & 
18  Vict.  c.  125,  s.  26,  and  28  &  29  Vict.  c.  18,  ss.  1  &  7. 

Article  68. 

proof  when  attesting  witness  denies  the  execution. 

If  the  attesting  witness  denies  or  does  not  rec- 
ollect the  execution  of  the  document,  its  execution 
may  be  proved  by  other  evidence,  (a) 

ATTESTING   WITNESS    DENYING    EXECUTION. 

Montana.  If  the  subscribing  witness  to  a  private  writing 
denies  or  does  not  recollect  the  execution  of  the  document, 
the  execution  thereof  may  be  proved  by  other  evidence. 
—Code    (1907),    §   7945. 

Nebraska.  Where  the  subscribing  witness  denies  or  does 
not  recall  the  execution  of  an  instrument,  the  execution 
may  be  proved  by  others. — C.  C.  P.,  §  343;  Buchanan  v. 
Wise,  34  Neb.  695,  52  N.  W.  163;  Jewell  v.  Chamberlain, 
41  Neb.  254,  59  N.  W.  784. 

Utah.  Where  the  subscribing  witness  denies  or  has  for- 
gotten, the  execution  of  a  written  instrument  may  be 
proved  by  other  evidence. — Comp.  Laws  (1907),  §  3404. 

(a)  "Where  an  attesting  witness  has  denied  all  knowledge 
of  the  matter,  the  case  stands  as  if  there  were  no  attesting 
witness."  Talbot  v.  Hodson,  7  Tau.  251,  254;  [2  Wigmore 
Ev.,   §   1317.] 


DOCUMENTS  559 

Article  69. 
proof  of  document  not  required  by  law  to  re  attested. 

An  attested  document  not  required  by  law  to 
be  attested  may  in  all  cases  whatever,  civil  or 
criminal,  be  proved  as  if  it  was  unattested,  (a) 

PROOF  OF  WRITTEN  INSTRUMENTS. 
Arkansas.  The  execution  of  a  deed  may  be  proved  either 
by  the  testimony  of  the  subscribing  witness,  or  by  an  ac- 
knowledgment properly  taken. — Cocke  v.  Brogan,  5  Ark. 
69'3;  Dixon  v.  Thatcher,  14  Ark.  141;  McNeill  v.  Arnold,  17 
Ark.  154;   Hecht  v.  Caughron,  46  Ark.  132. 

The  proof  of  the  handwriting  of  the  maker  of  an  instru- 
ment is  preferred  to  proof  of  that  of  the  attesting  witness 
who  signed   by  mark. — Delony  v.   Delony,   24  Ark.   7. 

An  instrument  must  be  acknowledged,  filed  and  recorded 
before  it  is  admissible  in  evidence  without  proof  of  exe- 
cution.— Wilson  v.  Spring,  38  Ark.  181;  Watson  v.  Billings, 
38  Ark.  278;  Dorr  v.  School  District,  40  Ark.  237;  Griesler 
v.  McKennon,  44  Ark.  517. 

California.  Conveyances  of  real  estate,  if  acknowledged 
as  required  by  law,  are  admissible  in  evidence  without 
further  proof;  but,  if  not  so  acknowledged,  must  be  proved 
according  to  the  ordinary  rules  of  law  applicable  to  the 
subject.— Landers  v.  Bolton,  26  Cal.  393. 
Kansas.  Where  the  execution  of  a  deed  is  proved,  it  is 
then  immaterial  whether  the  deed  was  acknowledged  or 
not  and  such  unacknowledged  deed  possesses  title  equally 
with  one  duly  acknowledged. — Missouri  Pac.  Ry.  Co.  v. 
Houseman,  41  Kan.  300,   21  P.  284. 

(a)  17  &  18  Vict.  c.  125,  s.  26;  28  &  29  Vict.  c.  18,  ss.  1,  7. 
[By  the  common  law,  such  documents  must  be  proved  in  the 
same  way  as  those  which  the  law  requires  to  be  attested. 
Such  is,  no  doubt,  the  rule,  in  the  absence  of  statutory  con- 
trol, in  this  country.  For  authentication  of  documents,  by 
age,  contents,  official  custody,  and  by  purporting  official  seal 
or  signature,  see  4  Wigmore  Ev.,   §§   2139-2169.] 


560  DOCUMENTS 

An  unacknowledged  instrument  must  be  proved  by  the 
rules  of  the  common  law. — Gray  v.  Ulrich,  8  Kan.  112; 
Rullman  v.  Barr,  54  Kan.  643,  39  P.  179;  Missouri  Pac.  R. 
Co.  v.  Houseman,  41  Kan.  300,  21  P.  284. 
North  Dakota.  In  many  states  there  are  statutory  provi- 
sions providing  for  the  manner  of  proof  of  the  execution 
of  written  instruments.  Perhaps  it  is  not  entirely  clear 
whether  such  provisions  relate  to  the  proof  of  the  instru- 
ment upon  the  trial  of  cases,  or  is  strictly  confined  to  the 
mode  of  proving  the  execution  for  the  purpose  of  acknowl- 
edgment. While  the  language  generally  used  in  such  pro- 
visions seems  to  strongly  favor  the  latter  construction, 
yet  the  question  is,  undoubtedly  still  an  open  one. — Bryn- 
jolfson  v.  Northwestern  Elev.  Co.,  6  N.  D.  450,  71  N.  W.  555. 
Texas.  Where  the  attesting  witness  is  unavailable  or  be- 
yond the  jurisdiction  of  the  court,  his  handwriting  must 
.  be  proved  to  entitle  a  document  to  be  admitted  as  evidence. 
— Craddock  v.  Merrill,  2  Tex.  494;  Frazier  v.  Moore,  11  Tex. 
755,  Gainer  v.  Cotton,  49  Tex.  101;  International  &  G.  N. 
Ry.  Co.  v.  McRae,  82  Tex.  614,  18  S.  W.  672;  Harris  v.  Hos- 
kins,  2  Tex.  Civ.  App.  486,  22  S.  W.  251;  Smith  v.  Dunman, 
9  Tex.  Civ.  App.  319,  29  S.  W.  432. 

An  unacknowledged  instrument  must  be  proved  by  the 
rules  of  the  common  law. — McLane  v.  Canales,  (Tex.  Civ. 
App.),  25  S.  W.  29. 

Where  the  attesting  witness  is  unavailable,  the  hand- 
writing of  the  witness,  or  of  the  party,  or  the  testimony 
of  the  party  may  be  admitted  to  prove  the  execution  of 
the  instrument. — Mapes  v.  Leal,   27   Tex.   345. 

It  must  be  shown  that  letters  purporting  to  be  those 
from  a  certain  party  were  in  fact  written  or  signed  by 
him.— Denning,  ex  parte,  50  Tex.  Cr.  R.  629,  100  S.  W.  401. 
Washington.  If  either  party,  before  trial,  allow  the  other 
an  inspection  of  the  writing,  and  deliver  him  a  copy  with 
notice  that  he  intends  to  read  the  same  in  evidence  at  the 
trial,  it  may  be  so  read  without  proof  of  genuineness  or 
execution,  unless  the  execution  thereof  is  denied  on  oath 
before  the  trial.— R.  &  B.  Codes  and  Stats.  (1910),  §  1263; 
Beebe  v.  Redward,  35  Wash.  615,  77  P.  1052. 


DOCUMENTS  561 

The  fact  that  a  document  was  not  found  in  the  land 
offices  in  Oregon  where  it  properly  belonged,  but  in  the 
general  land  office  at  Washington,  did  not  discredit  it  as 
evidence,  and  a  duly  certified  copy  was  properly  admitted 
in  evidence. — Sylvester  v.  State,  46  Wash.  585,  91  P.  15. 

Article  70. 
secondary  evidence. 

Secondary  evidence  means — 

(1)  Examined  copies,  exemplifications,  office 
copies,  and  certified  copies :   (a) 

(2)  Other  copies  made  from  the  original  and 
proved  to  be  correct: 

(3)  Counterparts  of  documents  as  against  the 
parties  who  did  not  execute  them:   (b) 

(4)  Oral  accounts  of  the  contents  of  a  docu- 
ment given  by  some  person  who  has  himself 
seen  it. 

SECONDARY    EVIDENCE. 

Arkansas.  Where  an  alleged  lost  instrument  would  take 
the  agreement  out  of  the  statute  of  frauds,  parol  evidence 
of  its  contents  is  admissible. — Southern  Cotton  Oil  Co.  v. 
Coleman,    (Ark.),   170  S.  W.  992. 

California.  Letter  press  copies  are  the  best  evidence  of 
the  contents  of  letters  next  to  the  originals  themselves. — 
Ford  v.  Cunningham,  87  Cal.  209,  25  P.  403. 

After  proper  notice  to  produce  a  letter  and  default  by 
a  party,  a  longhand  copy  shown  to  be  such  is  admissible 
though  not  a  facsimile. — Grant  v.  Dreyfus,  (Cal.),  52  P. 
1074. 

(a)  See  chapter  X.      [2  Wigmore  Ev.,   §   1177,  et  seq.] 

(b)  Munn  v.   Godbold,   3  Bing.   292. 


562  DOCUMENTS 

The  contents  of  a  lost  deed  may  be  testified  to  from  the 
recollection  of  the  witness. — King  v.  Samuel,  7  Cal.  App. 
55,  93  P.  391. 

Colorado.  Unless  authorized  by  law,  the  contents  of  the 
journal  of  a  charter  convention  are  inadmissible  in  evi- 
dence.— People  ex  rel  Bottom  v.  Lindsley,  37  Colo.  476, 
86  P.  352. 

Idaho.  Where  the  board  of  county  commissioners  took 
proper  action  but  mislaid  or  lost  the  documents  and  papers 
forming  the  basis  of  such  action,  and  full  and  complete 
record  was  not  made,  oral  testimony  is  admissible  to  show 
the  entire  proceedings. — Sims  v.  Milwaukee  Land  Co.,  20 
Ida.   513,   119  P.  37. 

Kansas.  Where  the  original  of  a  writing  cannot  be  pro- 
duced, a  copy  thereof  made  some  two  years  after  the  time 
the  original  was  executed  by  one  who  knew  the  contents 
of  the  original  is  admissible  as  secondary  evidence. — Wal- 
ter v.  Calhoun,  88  Kan.  801,  129  P.  1176. 
Texas.  If  the  instrument  itself  is  not  admissible,  oral 
proof  of  its  contents  cannot  be  received. — Burton  v.  State, 
51  Tex.  Cr.  R.  196,  101  S.  W.  226;  Harris  v.  State,  72  Tex. 
Cr.  R.  117,  161  S.  W.  125. 

Article  71. 

cases  in  which  secondary  evidence  relating  to  documents 
may  be  given. 

Secondary  evidence  may  be  given  of  the  con- 
tents of  a  document  in  the  following  cases — 

(a)  When  the  original  is  shown  or  appears  to 
be  in  the  possession  or  power  of  the  adverse  party. 

and  when,  after  the  notice  mentioned  in  article 
72,  he  does  not  produce  it;  (a) 

(a)  R.  v.  Watson,  2  T.  R.  201.  Entick  v.  Carrington,  19 
S.  T.  1073,  is  cited  by  Mr.  Phillips  as  an  authority  for  this 
proposition.  I  do  not  think  it  supports  it,  but  it  shows  the 
necessity  for  the  rule,  as  at  common  law  no  power  existed 
to  compel  the  production  of  documents. 


DOCUMENTS  563 

(b)  When  the  original  is  shown  or  appears  to 
be  in  the  possession  or  power  of  a  stranger  not 
legally  bound  to  produce  it,  and  who  refuses  to 
produce  it  after  being  served  with  a  subpoena 
duces  tecum,  or  after  having  been  sworn  as  a 
witness  and  asked  for  the  document  and  having 
admitted  that  it  is  in  court;  (b) 

(c)  When  the  original  has  been  destroyed  or 
lost,  and  proper  search  has  been  made  for  it;  (c) 

(d)  When  the  original  is  of  such  a  nature  as 
not  to  be  easily  movable,  (d)  or.  is  in  a  country 
from  which  it  is  not  permitted  to  be  removed ;  (e) 

(e)  When  the  original  is  a  public  docu- 
ment; (f) 

(/)  [When  the  document  is  required  or  au- 
thorized by  law  to  be  registered  and  the  record 
or  a  certified  copy  thereof  is  made  evidence  by 
statute.]   (g) 

(g)  When  the  original  is  a  document  for  the 
proof  of  which  special  provision  is  made  by  any 


(b)  Miles  v.  Oddy,  6  C.  &  P.  732;  Marston  v.  Dowries,  1  A. 
A    K   31;    [2  Wigmore  Ev.,    §§    1211-1213.] 

(c)  1  Ph.  Ev.  s.  452;  2  Ph.  Ev.  281;  T.  E.  (from  Greehleaf) 
s.  399;  [2  Wigmore  Ev.,  §§  1193-1198];  R.  v.  Haworth,  4  C.  & 
P.    254. 

(d>  Mortimer  v.  McCallan,  6  M.  &  W.  67,  68  (this  was  the 
case  of  a  libel  written  on  a  wall);  Bruce  v.  Nicolopulo,  11 
Ex.  133  (the  case  of  a  placard  posted  on  a  wall);  [2  Wigmore 
By.,    §§    1215-1217]. 

(e)  Alivon  v.  Furnival,  1  C.  M.  &  R.  277,  291-292.  (Or  be- 
yond the  jurisdiction  of  the  court.  Burton  v.  Driggs,  20 
Wall.    (U.    S.)    125.) 

(f)  See   chapter    X;    [2    Wigmore   Ev.,    §§    1218-1222]. 

(g)  [Ibid.;  3  Wigmore  Ev.,  §  1651.  The  original  of  the 
learned  author's  text  read  as  follows:  "(f)  When  the  docu- 
ment Is  an  entry  in  a  banker's  book  proof  of  which  is  ad- 
missible   under   article    3G."] 


564  DOCUMENTS 

Act  of  Parliament  [or  legislative  body],  or  any 
law  in  force  for  the  time  being;  (h)  or 

(h)  When  the  originals  consist  of  numerous 
documents  which  cannot  conveniently  be  exam- 
ined in  court  and  the  fact  to  be  proved  is  the  gen- 
eral result  of  the  whole  collection:  provided  that 
that  result  is  capable  of  being  ascertained  by  cal- 
culation, (i) 

Subject  to  the  provisions  hereinafter  contained 
any  secondary  evidence  of  a  document  is  admis- 
sible, (j) 

[In  cases  (/)  and  (g),  proof  must,  when  made 
by  copies  of  the  record,  be  made  by  copies  duly 
authenticated  by  the  proper  officer,  and  in  the 
manner  prescribed  by  statute,  (k) 

In  case  (g)  evidence  may  be  given  as  to  the 
general  result  of  the  documents  by  any  person 

(h)    [See  chapter  X;   3   Wigmore  Ev.,   §   1651.] 

(i)  Roberts  v.  Doxen,  Peake,  116;  Meyer  v.  Sefton,  2  Star. 
276;  [2  Wigmore  Ev.,  §  1230].  The  books,  etc.,  should  in 
such  case  be  ready  to  be  produced  if  required.  Johnson  v. 
Kershaw,   1   De  G.  &   S.   264. 

(j)  If  a  counterpart  is  known  to  exist,  it  is  the  safest 
course  to  produce  or  account  for  it.  Munn  v.  Godbold,  3 
Bing.    297;    R.   v.   Castleton,    7    T.   R.    236. 

(k)  [The  original  text  of  the  learned  author  in  this  para- 
graph read  as  follows:  "In  case  (f)  the  copies  cannot  be 
received  as  evidence  unless  it  be  first  proved  that  the  book 
in  which  the  entries  copied  were  made  was  at  the  time  of 
making  one  of  the  ordinary  books  of  the  bank,  and  that  the 
entry  was  made  in  the  usual  and  ordinary  course  of  business, 
and  that  the  book  is  in  the  custody  and  control  of  the  bank, 
which  proof  may  be  given  orally  or  by  affidavit  by  a  partner 
or  officer  of  the  bank,  and  that  the  copy  has  been  examined 
with  the  original  entry  and  is  correct,  which  proof  must  be 
given  by  some  person  who  has  examined  the  copy  with  the 
original  entry,  and  may  be  given  orally  or  by  affidavit;" 
citing  42  &  43  Vict.,  c.  11,  ss.   3,  5.] 


DOCUMENTS  565 

who  has  examined  them,  and  who  is  skilled  in  the 
examination  of  such  documents.] 

Questions  as  to  the  existence  of  facts  rendering 
secondary  evidence  of  the  contents  of  documents 
admissible  are  to  be  decided  by  the  judge,  (1)  un- 
less in  deciding  such  a  question  the  judge  would 
in  effect  decide  the  matter  in  issue,  (m) 

ACCOUNTING    FOR    ORIGINAL. 

Arkansas.  Instruments  not  forming  the  basis  of  the  action, 
but  merely  proof  of  collateral  matters,  may  be  proved  by 
parol.  (Action  against  railroad  company  for  injuries  to 
passenger  by  falling  into  a  hole  on  another's  land.  Cer- 
tified copy  of  a  deed  showing  width  of  company's  right-of- 
way  admissible  without  showing  original  unobtainable). — 
St.  Louis  &  S.  F.  Ry.  Co.  v.  Caldwell,  93  Ark.  286,  124  S. 
W.   1034. 

California.  Until  the  original  is  accounted  for,  the  record 
of  an  instrument  is  inadmissible  to  prove  its  execution  and 
contents.— Brown  v.  Griffith,  70  Cal.  14,  11  P.  500. 

The  original  instrument  must  be  accounted  for  before 
secondary  evidence  of  the  contents  is  admissible. — Fresno 
Canal  &  Irr.  Co.  v.  Dunbar,  80  Cal.  530,  22  P.  275. 

Kansas.  A  subpoena  on  a  party  for  a  document  not  in  his 
possession  or  control  will  not  let  in  secondary  evidence  of 
its  contents. — Jobes  v.  Lows,  63  Kan.  886,  66  P.  627. 

Utah.  A  carbon  copy  of  an  instrument  is  a  duplicate  ori- 
ginal and  admissible  in  evidence  without  accounting  for 
other  copies. — De  Michele  v.  London  &  L.  Fire  Ins.  Co., 
40  Utah  312,   120  P.  846. 


(1)    Stowe    v.    querner,    L.    R.    5    Exch.    155;    [ante,    art.    49]. 

(m)  [Statutes  providing  for  the  admission  of  secondary 
evidence  of  divers  documents,  laws,  records,  etc.,  are  treated 
under  article  X.] 


566  DOCUMENTS 

ORIGINAL    IN    POSSESSION    OF   ADVERSE    PARTY. 

Rules  as  to  detention  of  document  and  notice  to  produce 
are  treated  in  the  next  article. — [Ed.  note.] 

"The  reason  for  the  excuse  (for  not  producing  the  ori- 
ginal) is  clear;  if  the  opponent  detains  the  document  then 
it  is  not  available  for  the  proponent,  and  as  the  funda- 
mental notion  of  the  general  rule  is  that  production  is  not 
required  when  it  is  not  feasible,  the  rule  here  falls  away 
and  the  non-production   is  excused."- — 2  Wigmore  Ev.,    §   1199. 

Arizona.  Where  a  letter  written  by  defendant  in  a  crim- 
inal prosecution  to  his  wife  is  in  her  possession,  she  cannot 
be  compelled  to  produce  it  and  the  contents  may  be  estab- 
lished by  secondary  evidence. — De  Leon  v.  Territory,  9 
Ariz.  161,  80  P.  348. 

California.  Where  the  adverse  party  has  a  duplicate  copy 
of  an  alleged  destroyed  instrument  sued  on,  he  cannot  ob- 
ject to  secondary  evidence  of  its  contents,  and  other  du- 
plicates need  not  be  accounted  for. — Nicholson  v.  Tarpey, 
70  Cal.  608,  12  P.  778. 

A  party  to  an  action,  when  made  a  witness  by  the  ad- 
verse party  will  be  required  to  testify  as  to  his  possession 
or  control  of  writings  containing  evidence  deemed  material, 
and  the  judge  may  order  him  to  produce  such  writings. — 
Moorehouse  v.  Moorehouse,  136  Cal.  332,  68  P.  976. 
Nebraska.  Where  a  document  is  traced  to  the  hands  of 
the  adverse  party  who  admits  its  loss,  no  further  search 
need  be  shown  to  admit  secondary  evidence  of  its  contents. 
— Barmby  v.  Plummer,  29  Neb.  64,  45  N.  W.  277. 
New  Mexico.  Where  an  original  document  is  in  the  pos- 
session of  the  adverse  party,  a  copy  thereof  may  be  intro- 
duced in  evidence. — Beall  v.  Territory,  1  N.  M.  507. 

Muniments  of  title,  prior  to  that  immediately  into  the 
party  having  use  for  such  at  a  trial,  are  presumptively  in 
the  possession  of  the  persons  to  whom  made,  and  such 
presumption  of  fact  stands  prima  facie  as  a  sufficient  show- 
ing justifying  the  use  of  the  record  of  such  title  papers, 
under  Comp.  Laws  1897,  §  3965,  allowing  the  use  of  the  rec- 
ord where  the  original  is  not  in  the  hands  of  the  party 
wishing  to  use  it. — Tagliaferri  v.  Grande,  16  N.  M.  486, 
120  P.  730. 


DOCUMENTS  567 

Oregon.  Proof  that  a  letter  was  mailed  to  the  adverse 
party  and  notice  given  him  to  produce  lets  in  secondary 
evidence  of  its  contents. — Sugar  Pine  Door  &  L.  Co.  v. 
Garrett,  28  Or.  168,  42  P.  129;  State  v.  Hanscom,  28  Or. 
427,  43  P.  167;  Duggan  v.  City  of  Emporia,  58  Or.  86,  113 
P.  436. 

Texas.  When  a  written  instrument  is  shown  to  be  in  the 
possession  of  the  adverse  party  who  declines  to  produce  it 
after  notice,  secondary  evidence  of  its  contents  is  admis- 
sible.—Bunker  v.  State,   (Tex.  Cr.  R.),  177  S.  W.  108. 

Where  a  writing  is  in  the  possession  of  counsel  for  the 
adverse  party,  and  is  not  produced  on  demand,  secondary 
evidence  as  to  the  contents  may  be  received. — Denman  v. 
James,   (Tex.  Civ.  App.),  180  S.  W.  1157. 

Washington.  Secondary  evidence  of  the  contents  of  a 
document  in  the  possession  of  a  defendant  in  a  criminal 
prosecution  is  admissible,  in  the  first  instance. — State  v. 
McCauley,  17  Wash.  88,  49  P.  221. 

When  an  original  document  is  traced  to  the  hands  of 
the  adverse  party,  secondary  evidence  of  its  contents  is 
admissible  after  proper  notice  to  produce  and  failure  there- 
in.—Nunn  v.  Jordan,  31  Wash.  506,  72  P.  124;  Keenan  v. 
Lauritzen  Malt  Co.,  57  Wash.  367,  106  P.  1122;  Hanson  v. 
Columbia  &  P.  S.  R.  Co.,  75  Wash.  342,  134  P.  1058. 

ORIGINAL  IN   HANDS  OF  STRANGER. 

California.  A  person  in  the  employ  of  a  telegraph  com- 
pany, having  charge  of  its  messages,  served  with  a  sub- 
poena duces  tecum  to  produce  all  messages  from  a  num- 
ber of  persons  to  many  others  between  certain  specified 
dates,  cannot  be  compelled  to  do  so. — Jaynes,  ex  parte,  70 
Cal.  638,  12  P;  117. 

Kansas.  Secondary  evidence  of  the  contents  of  a  docu- 
ment is  admissible  where  the  original  is  in  possession  of 
one  who  refuses  to  produce  it  because  it  may  incriminate 
him.— State  v.  Gurnee,  14  Kan.  111. 

New  Mexico.  Where  a  document  is  presumed  to  be  in  the 
custody  of  another,  secondary  evidence  of  its  contents  is 


568  DOCUMENTS 

admissible  under  §  3965,  C.  L.  1897.— Tagliaferri  v.  Grande, 
16  N.  M.  486,  120  P.  730. 

Washington.  A  demand  to  produce  an  instrument  cannot 
be  made  of  a  witness  not  a  party  to  the  suit  for  the  first 
time  when  the  witness  is  on  the  stand.— Hull  v.  Seattle, 
Renton,  etc.,  R.  Co.,  60  Wash.  162,  110  P.  804. 

ORIGINAL   OUT   OF   JURISDICTION. 

The  fact  that  a  document  is  in  the  possession  of  a  third 
person  out  of  the  state  is  sufficient  to  let  in  secondary 
evidence,  though  no  effort  has  been  made  to  secure  the 
production  of  the  instrument: 

Arkansas:  Ritter  v.  State,  70  Ark.  472,  69  S.  W.  262  (let- 
ters of  remittance  held  outside  state). 

California:  Gordon  v.  Searing,  8  Cal.  49  (deed  or  grant 
traced  to  possession  of  party  outside  state);  Zellerbach 
v.  Allenberg,  99  Cal.  57,  33  P.  786  (letter  beyond  territory 
of  state). 

South  Dakota:  Hagaman  v.  Gillis,  9  S.  D.  61,  68  N.  W. 
192  (instrument  last  known  to  have  been  in  possession  of 
a  third  person  in  another  state). 

Texas:  Clifton  v.  Lilley,  12  Tex.  130  (one  last  having  pos- 
session lived  in  another  state) ;  Veck  v.  Holt,  71  Tex.  715, 
9  S.  W.  743  (holder  of  original  bill  of  sale  living  in  an- 
other state,  no  demand  necessary) ;  Frost  v.  Wolf,  77  Tex. 
455,  14  S.  W.  440  (original  deed,  in  accordance  with  prac- 
tice in  Louisiana,  being  executed  on  notary's  books,  could 
not  be  produced  as  being  a  record   of  another  state). 

The  mere  fact  that  the  instrument  is  shown  to  be  in 
the  possession  of  a  party  then  outside  the  state  is  not 
of  itself  sufficient  to  sustain  parol  proof  of  its  contents, 
but  some  effort  should  be  made  to  obtain  the  writing 
before  parol  proof  of  its  contents  is  offered. — Lon- 
doner v.  Stewart,  3  Colo.  47;  Shaw  v.  Mason,  10  Kan.  184, 
189. 

Arkansas.  Secondary  evidence  of  the  contents  of  a  doc- 
ument is  admissible  where  it  appears  that  the  original  is 
beyond  the  jurisdiction  of  a   subpoena  duces  tecum  and 


DOCUMENTS  569 

the  party  relying  upon  it  is  not  entitled  to  its  possession. 
— Bozeman  v.  Browning,  31  Ark.  364;  Ritter  v.  State,  70 
Ark.  472,  69  S.  W.  262. 

California.  Where  a  document  is  out  of  the  jurisdiction 
of  the  court  in  the  possession  of  one  not  a  party  to  the 
suit,  secondary  evidence  is  admissible  to  prove  its  con- 
tents.— Gordon  v.  Searing,  8  Cal.  49;  Zellerbach  v.  Allen- 
berg,  99  Cal.  57,  33  P.  786. 

Under  the  statute  a  document  beyond  the  jurisdiction 
of  the  court  is  considered  as  lost,  and  secondary  evidence 
of  its  contents  is  admissible. — Gordon  v.  Searing,  8  Cal. 
49;   Zellerbach  v.  Allenberg,  99  Cal.  57,  33  P.  786. 

Where  it  appears  that  letters  had  been  mailed  by  wit- 
ness to  another  in  a  foreign  country,  that  witness  had 
not  seen  them  since,  and  that  in  the  due  course  of  mail 
he  had  received  replies  thereto,  and  he  had  preserved  no 
copies,  oral  evidence  of  their  contents  is  admissible. — 
Zellerbach  v.  Allenberg,  99  Cal.  57,  33  P.  786. 
Colorado.  If  books  and  papers  necessary  as  evidence  in 
one  state  be  in  possession  of  a  person  in  another,  sec- 
ondary evidence,  without  further  showing,  may  be  given 
to  prove  the  contents  of  such  papers,  and  notice  to  pro- 
duce them  is  unnecessary. — Owers  v.  Olathe  Silver  Min. 
Co.,  6  Colo.  App.  1,  39  P.  980. 

Kansas.  The  admission  in  evidence  on  the  application  of 
the  plaintiff,  of  a  record  copy  of  a  deed  of  conveyance, 
when  it  is  admitted  that  the  deed  itself  is  in  the  posses- 
sion and  under  the  control  of  the  plaintiff,  is  error,  al- 
though the  plaintiff  may  at  the  same  time  be  absent  from 
the  state  and  in  New  York,  and  have  the  deed  in  his  pos- 
session at  that  place. — West  v.  Cameron,  39  Kan.  736,  18 
P.  894. 

Nevada.  Where  the  original  document  is  out  of  the  juris- 
diction of  the  court  and  beyond  the  power  of  the  party  to 
procure  it,  he  may  introduce  secondary  evidence  of  its 
contents. — Evans   v.   Lee,    11   Nev.    194. 

New  Mexico.  That  the  original  document  is  in  the  pos- 
session of  one  who  is  without  the  jurisdiction  of  the  court, 


570  DOCUMENTS 

is  not  sufficient  to  let  in  secondary  evidence  of  its  con- 
tents.— Kirchner  v.  Laughlin,  6  N.  M.  300,  28  P.  505. 
Oklahoma.     Secondary  evidence  of  the  contents  of  a  writ- 
ing is  not  admissible  when  it  is  in  the  possession  of  a 
person  living  in  another  state,  unless  first  shown  that  the 
instrument  is  beyond  the  control  of  the  person  wishing 
to  use  it. — Pringey  v.  Guss,  16  Okl.  82,  86  P.  292. 
South   Dakota.     Where  a  document  is  out  of  the  jurisdic- 
tion of  the  court  in  the  possession  of  one  not  a  party  to 
the   suit,    secondary   evidence   is   admissible   to   prove   its 
contents.— Hagaman  v.  Gillis,  9  S.  D.  61,  68  N.  W.  192. 
Texas.     Where  it  appears  that  a  document  is  without  the 
jurisdiction  of  the   court,  its   contents  may  be  shown  by 
secondary    evidence. — Smith    v.    Nat.    Bank,    82    Tex.    368, 
17  S.  W.  779. 

Where  a  document  is  beyond  the  jurisdiction  of  the 
court  in  the  possession  of  one  not  a  party  to  the  suit,  sec- 
ondary evidence  is  admissible  to  prove  its  contents. — Mc- 
Bride  v.  Willis,  82  Tex.  141,  18  S.  W.  205;  Sayles  v.  Brad- 
ley, etc.,  Co.,  92  Tex.  406,  49  S.  W.  209;  Missouri  P.  Ry. 
Co.  v.  Dilworth,  95  Tex.  327,  67  S.  W.  88;  Spaulding  v. 
Smith,   (Tex.  Civ.  App.),  169  S.  W.  627. 

Where  an  original  statement  of  a  debtor  to  Bradstreet's 
was  in  another  county,  and  tbe  superintendent  refused  to 
attach  it  to  his  deposition,  secondary  evidence  of  its  con- 
tents is  admissible. — Sayles  v.  Bradley  &  M.  Co.,  92  Tex. 
406,   49   S.   W.   209. 

Refusal  of  railway  agent  to  attach  waybill  to  deposition 
taken  in  another  state,  justifies  secondary  proof  of  its 
contents. — Missouri,  K.  &  T.  R.  Co.  v.  Dilworth,  95  Tex. 
327,  67  S.  W.  88. 

Where  the  original  document  is  without  the  jurisdiction 
of  the  court,  secondary  evidence  is  admissible. — Spaulding 
v.  Smith,  (Tex.  Civ.  App.),  169  S.  W.  627. 
Utah.  Where  a  writing  is  shown  to  be  in  the  custody  of 
a  party  not  within  the  state,  secondary  evidence  of  its 
contents  is  admissible  without  showing  its  loss  or  de- 
struction.— Dwyer  v.  Salt  Lake  City  Copper  Mfg.  Co.,  14 
Utah  339,  47  P.  311. 


DOCUMENTS  571 

Where  a  document  is  shown  to  be  without  the  jurisdic- 
tion of  the  court,  secondary  evidence  of  its  contents  is  ad- 
missible.— Johnson  v.  Union  Pacific  R.  Co.,  35  Utah  285, 
100  P.  390. 

Washington.  Where  a  document  is  out  of  the  jurisdiction 
of  the  court  in  the  possession  of  one  not  a  party  to  the 
suit,  secondary  evidence  is  admissible  to  prove  its  con- 
tents.—Sayward  v.  Gardner,  5  Wash.  247,  31  P.  761,  33  P. 
389. 

Wyoming.  Proof  that  a  document  is  beyond  the  jurisdic- 
tion of  the  court  lets  in  secondary  evidence  of  its  con- 
tents.—Cornish  v.  Territory,  3  Wyo.  95,  3  P.  793. 

Where  letter  was  never  within  jurisdiction  of  court,  its 
contents  may  be  shown  by  parol. — Cornish  v.  Territory,  3 
Wyo.  95,  3  P.  793. 

DESTRUCTION    OR    LOSS,   AND   SEARCH. 

Arizona.  Less  proof  of  search  for  an  unimportant  docu- 
ment alleged  to  be  lost  or  destroyed,  but  a  bona  fide  and 
unsuccessful  search  in  probable  places  must  be  shown. — 
Rush  v.  French,  1  Ariz.  99,  25  P.  816. 

Arkansas.  After  a  long  lapse  of  time  the  execution  of  an 
alleged  lost  deed  may  be  shown  by  secondary  evidence 
where  the  attesting  witness  is  dead. — Trammell  v.  Thur- 
mond, 17  Ark.  263. 

California.  It  is  not  a  matter  of  course  to  allow  secondary 
evidence  of  the  contents  of  an  instrument  in  suit  upon 
proof  of  its  destruction.  If  the  destruction  was  the  result 
of  an  accident,  or  was  without  the  agency  or  consent  of 
the  owner,  such  evidence  is  generally  admissible.  But 
if  the  destruction  was  voluntarily  and  deliberately  made, 
by  the  owner,  or  with  his  assent,  the  admissibility  of  the 
evidence  will  depend  upon  the  cause,  or  motive  of  the 
party  in  effecting  or  assenting  to  its  destruction. — Bagley 
v.  McMickle.  9  Cal.  430. 

A  letter  that  is  beyond  the  territory  of  the  state  is  "lost," 
so  as  to  admit  secondary  proof  of  its  contents. — Zeller- 
bach  v.  Allenberg,  99  Cal.  57,  33  P.  786. 


572  DOCUMENTS 

The  loss  or  destruction  of  the  original  instrument  must 
be  shown  before  secondary  evidence  of  the  contents  is  ad- 
missible.—Dahler  v.  All  Persons,  163  Cal.  160,  124  P.  995. 
Colorado.  To  show  in  general  terms  that  a  writing  is  lost 
without  showing  search  or  inquiry  is  not  sufficient  to  let 
in  secondary  evidence  of  its  contents. — Lyon  v.  Wash- 
burn, 3  Colo.  201. 

Where  a  witness  testifies  that  he  destroyed  a  writing 
and  there  is  no  intimation  of  fraud,  he  may  testify  as  to 
its  contents  from  having  heard  it  read. — Breen  v.  Rich- 
ardson, 6  Colo.  605. 

The  execution  of  a  lost  or  destroyed  instrument  may 
be  proved  by  other  competent  evidence. — Owers  v.  Olathe 
Silver  Min.  Co.,  6  Colo.  App.  1,  39  P.  980. 

Where  the  minutes  of  a  convention  are  lost,  a  partial 
transcript  containing  everything  that  the  minutes  con- 
tained on  the  question  in  issue,  is  admissible  in  evidence. 
—Palmer  v.  Ruland,  28  Colo.  65,  62  P.  841. 

Idaho.  Secondary  evidence  of  the  contents  of  an  instru- 
ment is  not  admissible  unless  it  appears  that  the  original  is 
lost  or  destroyed.— C.  C.  P.  (1908),  §  5998. 

A  document  required  by  law  to  be  recorded  may  be 
proved  by  the  record,  where  it  appears  that  the  original  is 
lost.— Black  Canyon  Irr.  Dist.  v.  Marple,  19  Ida.  176,  112 
P.  766. 

Where  an  original  document  upon  which  proceedings 
were  based  is  lost  or  destroyed,  its  contents  may  be  estab- 
lished by  secondary  evidence. — Black  Canyon  Irr.  Dist.  v. 
Marple,  19  Ida.  176,  112  P.  766;  Sims  v.  Milwaukee  Land 
Co.,   20  Ida.   513,   119   P.   37. 

Kansas.  Public  records  are  admissible  to  prove  the  con- 
tents of  documents  recorded  therein  where  the  originals 
cannot  be  produced  by  the  party  wishing  to  use  the  evi- 
dence.— Meskimen  v.  Day,  35  Kan.  46,  10  P.  14;  Gildehaus 
v.  Whiting,  39  Kan.  706,  18  P.  916;  Rullman  v.  Barr,  54 
Kan.  643,  39  P.  179. 

Where  the  documentary  evidence  is  of  such  a  nature  as 
it  would  not  be  likely  to  have  been  preserved,  slight  proof 


DOCUMENTS  573 

of  loss  is  sufficient  to  let  in  secondary  evidence. — Atchison, 
T.  &  S.  F.  Ry.  Co.  v.  Palmore,  68  Kan.  545,  75  P.  509. 

Where  a  party  testifies  that  a  writing  is  not  in  existence, 
notice  to  produce  it  is  useless  and  secondary  evidence  of 
its  contents  is  admissible  after  tracing  the  writing  to 
such  party. — Bertenshaw  v.  Laney,  77  Kan.  497,  94  P.  805. 

Letter  press  copies  of  waybills  tending  to  show  the  des- 
tination of  the  cars  may  be  introduced  in  evidence  when  it 
appears  that  the  originals  are  lost. — Barker  v.  Kansas  City, 
M.  &  O.  Ry.  Co.,  88  Kan.  767,  129  P.  1151. 

Montana.  Proof  of  the  contents  of  the  rules  of  a  mining 
district  cannot  be  received  until  shown  that  the  original  is 
lost  or  destroyed. — Campbell  v.  Rankin,   2  Mont.   363. 

Nebraska.  Before  secondary  evidence  of  the  contents  of 
a  document  is  admissible  a  reasonable  search  for  the  ori- 
ginal must  be  shown. — Barmby  v.  Plummer,  29  Neb.  64,  45 
N.  W.  277. 

Oklahoma.  A  reasonable  search  must  be  made  in  the 
places  in  which  a  document  would  be  likely  to  be  found 
before  secondary  evidence  of  its  contents  can  be  received. 
—Richardson  v.  Fellner,  9  Okl.  513,  60  P.  270. 

South  Dakota.  The  record  of  a  sheriff's  bond  in  the  office 
of  the  register  of  deeds  is  admissible  when  the  original 
cannot  be  found. — Connor  v.  Corson,  13  S.  D.  550,  83  N. 
W.  588. 

Texas.  Where  the  original  ancient  instrument  is  lost,  a 
certified  copy  may  be  introduced  upon  the  same  proof  that 
would  have  made  the  original  admissible. — Holmes  v. 
Coryell,  58  Tex.  687;  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
Stealey,  66  Tex.  468,  1  S.  W.  186. 

That  a  party  lost  his  case  in  an  action  to  establish  title 
to  land,  may  be  shown,  in  a  subsequent  controversy  over 
the  title,  by  secondary  evidence  where  the  original  records 
are  destroyed. —  Martin  v.  Reed,  (Tex.  Civ.  App.),  160  S. 
W.  1094. 

The  evidence  of  a  witness  on  the  stand  as  to  inability  to 
produce   the  original  deed   is  equivalent   to  the  statutory 


574  DOCUMENTS 

affidavit,  and  is  sufficient  to  authorize  the  introduction  of 
a  certified  copy. — Hill  &  Jahns  v.  Lofton,  (Tex.  Civ.  App.), 
165  S.  W.  67. 

Where  the  defendant  did  not  contend  that  he  did  not 
issue  the  contract,  and  it  appearing  that  same  was  lost, 
parol  evidence  was  proper  to  prove  its  contend. — San 
Antonio  &  A.  P.  Ry.  Co.  v.  Grady,  (Tex.  Civ.  App.),  171 
S.  W.  1019. 

Utah.  Where  the  contents  of  a  writing  are  not  directly 
involved,  parol  evidence  of  its  contents  is  admissible 
without  showing  its  loss. — Johnson  v.  Union  Pacific  R.  Co., 
35  Utah  285,  100  P.  390. 

Diligence. 

It  must  appear  that  a  reasonable  effort  has  been  made 
without  success  to  procure  the  original  document  before 
secondary  evidence  of  its  contents  may  be  given.  Simply 
that  it  is  out  of  the  jurisdiction  of  the  court  is  not  suffi- 
cient.— Londoner  v.  Stewart,  3  Colo.  47;  Kirchner  v. 
Laughlin,  6  N.  M.  300,  28  P.  505;  Daly  v.  Bernstein,  6  N. 
M.  380,  28  P.  764;  Barnes  v.  Lynch,  9  Okl.  156,  59  P.  995; 
Richardson  v.  Fellner,  9  Okl.  513,  60  P.  270;  Wiseman  v. 
Northern  Pac.  R.  Co.,  20  Or.  425,  26  P.  272;  Sperry  v. 
Wesco,  26  Or.  483,  38  P.  623. 

Arizona.  Diligence  to  be  exerted  in  searching  for  an  al- 
leged lost  instrument  depends  to  some  extent  upon  the 
nature  of  the  instrument,  less  proof  being  required  of  an 
unimportant  document,  but  bona  fide  and  unsuccessful 
search  in  probable  places  must  be  shown. — Rush  v.  French, 
1  Ariz.  99,   25  P.  816. 

Arkansas.  Where  it  appears  that  a  further  search  might 
produce  an  alleged  lost  instrument,  secondary  evidence  of 
its  contents  is  inadmissible. — Wilburn  v.  State,  60  Ark. 
141,  29  S.  W.  149. 

California.  A  document  will  be  considered  lost  when  it 
cannot  be  found  after  diligent  search.  Reasonable  dili- 
gence in   making   the   search   requires   exploration   of  all 


DOCUMENTS  575 

possible  places  the  instrument  might  be. — King  v.  Sam- 
uel, 7  Cal.  App.  55,  93  P.  391. 

Colorado.  To  show  in  general  terms  that  a  writing  is  lost 
without  showing  search  or  inquiry  is  not  sufficient  to  admit 
secondary  evidence  of  the  contents. — Lyon  v.  Washburn, 
3  Colo.  201. 

Diligence  to  be  exerted  in  searching  for  an  alleged  lost 
instrument  depends  to  some  extent  upon  the  nature  of  the 
instrument,  less  proof  being  required  of  an  unimportant 
document,  but  bona  fide  and  unsuccessful  search  in  prob- 
able places  must  be  shown. — Wells  v.  Adams,  7  Colo.  26, 
1.  P.  698. 

Kansas.  If  a  search  for  an  alleged  lost  instrument  is 
made  by  a  third  person  such  person  must  be  called  to 
testify  as  to  the  search. — Guthrie  v.  Merrill,  4  Kan.  188; 
Johnson  v.  Mathews,  5  Kan.  123;  Douglas  v.  Wolf,  6 
Kan.  91. 

Reasonable  effort  without  success  must  appear  to  have 
been  exercised  to  produce  the  original  before  secondary 
evidence  may  be  given  of  the  contents.  That  it  is  with- 
out the  jurisdiction  of  the  court  is  not  sufficient. — Shaw  v. 
Mason,  10  Kan.  184;   Deitz  v.  Regnier,  27  Kan.  94. 

Proof  that  an  alleged  lost  deed  was  traced  to  the  regis- 
ter's office  without  proof  of  a  search  of  that  office  was  in- 
sufficient to  let  in  secondary  evidence  of  its  contents. — 
Lee  v.  Bermingham,  30  Kan.  312,  1  P.  73. 

That  witness  inquired  of  the  custodian  of  an  alleged  lost 
document  and  that  the  latter  told  him  that  it  could  not 
be  found,  will  not  let  in  secondary  evidence  of  its  contents. 
—Lee  v.  Bermingham,  30  Kan.  312,  1  P.  73. 

To  admit  secondary  evidence  of  a  deed  alleged  to  have 
been  lost,  the  party  offering  it  must  have  shown  that  he 
had  in  good  faith  and  with  reasonable  diligence  made  a 
search  for  the  same,  using  such  sources  of  information  and 
means  of  discovery  as  were  reasonably  accessible  to  him. 
— Rullman  v.  Barr,  54   Kan.   643,  39   P.   179. 

Nebraska.  A  reasonable  search  for  the  original  writing 
must  be  shown  to  admit  secondary  evidence  of  its  contents, 


576  DOCUMENTS 

but  where  it  is  traced  to  the  hands  of  the  adverse  party 
who  admits  its  loss,  no  further  search  need  be  shown. — 
Barmby  v.  Plummer,  29  Neb.  64,  45  N.  W.  277. 
New  Mexico.  Secondary  evidence  of  the  contents  of  an 
alleged  lost  instrument  is  inadmissible  until  it  appears  that 
diligence  has  been  exercised  to  find  the  original. — Kirch- 
ner  v.  Laughlin,  6  N.  M.  300,  28  P.  505;  Daly  v.  Bernstein, 
6  N.  M.  380,  28  P.  764. 

Oklahoma.  Where  a  document  is  traced  to  the  hands  of 
the  adverse  party  who  admits  its  loss,  no  further  search 
need  be  shown  to  admit  secondary  evidence  of  its  contents. 
—Cochran  v.  Bank  of  Tuttle,  31  Okl.  171,  120  P.  652; 
Richardson  v.  Fellner,  9  Okl.  513,  60  P.  270. 
Oregon.  The  party  alleging  the  loss  of  a  writing  should 
show  that  he  has,  in  good  faith,  exhausted  in  a  reasonable 
degree  all  sources  of  information  and  means  of  discovery 
which  the  nature  of  the  case  would  naturally  suggest  to 
procure  the  original,  before  secondary  evidence  of  the 
contents  should  be  admitted. — Sperry  v.  Wesco,  26  Or. 
483,   38   P.   623. 

The  testimony  of  a  witness  that  he  believes  the  ori- 
ginal writing  cannot  be  found,  but  that  no  effort  has  been 
made  to  find  it  is  not  sufficient  to  let  in  secondary  evi- 
dence.—Jones  v.  Teller,  65  Or.  328,  133  P.  354. 
Utah.  Where  it  appears  that  the  party  wishing  to  prove 
the  contents  of  a  deed  has  left  the  same  with  a  person 
residing  in  the  city  where  the  trial  is  had,  and  has  made 
no  effort  to  produce  it,  secondary  evidence  of  the  con- 
tents is  inadmissible. — Wilson  v.  Wright,  8  Utah  215,  30 
P.  754. 

ORIGINAL  NOT  MOVABLE. 
Arkansas.  Where  the  United  States  postal  recusations 
prohibit  taking  the  original  record  to  court,  one  who  has 
personal  knowledge  of  facts  recorded  therein  may  testify 
thereto.— Josephs  v.  Briant,  115  Ark.  538,  172  S.  W.  1002. 
Texas.  Where  a  document  of  public  nature  would  itself 
be  evidence  if  produced,  and  which  could  not  be  removed 
without  inconvenience  to  the  public  interests,  its  contents 


DOCUMENTS  577 

may  be  proved  by  secondary  evidence. — Smithers  v.  Law- 
rence, 100  Tex.  77,  93  S.  W.  1064;  Texas  &  P.  Ry.  Co.  v. 
Graham  &  Price,   (Tex.  Civ.  App.),  174  S.  W.  297. 

ORIGINAL   A    PUBLIC    DOCUMENT. 

California.  Where  the  original  document  is  in  the  custody 
of  a  public  officer  secondary  evidence  of  its  contents  is 
admissible.— Dyer  v.  Hudson,  65  Cal.  372,  4  P.  235. 

Idaho.  When  the  original  instrument  is  in  the  custody  of 
a  public  officer,  secondary  evidence  of  the  contents  is  ad- 
missible.—C.  C.  P.   (1908),  §  5998. 

Texas.  Where  the  document  is  of  such  a  nature  that  its 
removal  would  inconvenience  public  interests,  the  contents 
may  be  proved  by  secondary  evidence. — Smithers  v.  Law- 
rence, 100  Tex.  77,  93  S.  W.  1064;  Texas  &  P.  Ry.  Co.  v. 
Graham  &  Price,   (Tex.  Civ.  App.),  174  S.  W.  297. 

Washington.  Where  a  contract  upon  which  an  action  was 
based  was  written  on  the  back  of  a  public  document  which 
could  not  be  removed,  secondary  evidence  of  the  contract 
was  held  admissible. — Sayward  v.  Gardner,  5  Wash.  247, 
31  P.  761. 

ORIGINAL   RECORDS   OF    INSTRUMENTS. 

California.  The  record  of  an  instrument  is  evidence  only 
under  the  same  circumstances  that  a  certified  copy  would 
be.  The  original  must  be  accounted  for  before  the  record 
is  admissible  to  prove  the  execution  and  contents. — Brown 
v.  Griffith,  70  Cal.  14,  11  P.  500. 

Official  county  records  of  a  release  of  mortgage,  properly 
executed  and  acknowledged,  may  be  received  in  evidence 
without  accounting  for  the  original. — Adams  v.  Hopkins, 
144  Cal.   19,  77  P.  712. 

To  admit  the  record  of  a  deed  in  evidence  the  deed  must 
have  been  properly  indexed. — Central  Pacific  Ry.  Co.  v. 
Droge,  171  Cal.  32,  151  P.  663. 

Colorado.  The  record  of  a  judgment  or  a  transcript 
thereof  is  admissible  in  evidence  to  show  the  fact  of  its 
recovery. — Watson  v.  Hahn,   1  Colo.  385. 


578  DOCUMENTS 

That  a  statute  makes  a  certified  copy  evidence  of  mat- 
ters of  record,  does  not  disqualify  the  original  as  evidence. 
—McAllister  v.  People,  28  Colo.   156,  63  P.  308. 

That  the  statute  makes  certified  copies  of  a  record  or 
document  admissible  in  evidence  does  not  exclude  the 
original. — Grimes  v.  Greenblatt,  47  Colo.  495,  107  P.  1111; 
Empire  Ranch  &  C.  Co.  v.  Lanning,  49  Colo.  458,  113  P. 
491;  Knowles  v.  Martin,  20  Colo.  393,  38  P.  467. 
Idaho.  Where  the  law  requires  the  record  of  an  order  to 
be  kept,  such  record,  after  the  loss  of  the  original  docu- 
ment, is  admissible  in  evidence  to  prove  the  contents  of 
the  original  order. — Black  Canyon  Irr.  Dist.  v.  Marple,  19 
Ida.  176,  112  P.  766. 

Kansas.  When  the  instrument  is  such  that  the  law  au- 
thorizes its  record,  and  it  is  without  the  possession  or  con- 
trol of  the  party  wishing  to  introduce  it  in  evidence,  the 
record  thereof  is  admissible. — Meskimen  v.  Day,  35  Kan. 
46,  10  P.  14;   Rullman  v.  Barr,  54  Kan.  643,  39  P.  179. 

Under  a  statute  making  the  record  of  a  properly  exe- 
cuted deed  competent  evidence,  the  record  of  a  deed  lack- 
ing the  notary's  seal  is  inadmissible. — Meskimen  v.  Day, 
35  Kan.  46,  10  P.  14. 

The  record  or  a  duly  certified  copy  thereof  of  a  properly 
executed,  acknowledged  and  recorded  instrument  is  admis- 
sible in  evidence  without  proof  of  the  execution  of  the 
original,  when  it  is  unavailable. — Bernstein  v.  Smith,  10 
Kan.  60;  Williams  v.  Hall,  16  Kan.  23;  Bergman  v.  Bullitt, 
43  Kan.  709,  23  P.  938;  Stratton  v.  Hawks,  43  Kan.  538, 
23  P.  591. 

Under  the  provisions  of  a  statute  validating  instruments 
recorded  prior  to  its  passage,  and  making  the  record  there- 
of competent  evidence  when  the  original  is  shown  to  have 
been  lost  or  beyond  the  party's  control,  the  absence  from 
such  record  of  a  certificate  of  acknowledgment  to  the  in- 
strument does  not  render  such  record  inadmissible. — Gilde- 
haus  v.  Whiting,  39  Kan.  706,  18  P.  916. 

A  party  desiring  to  use  the  record  of  any  instrument 
properly  recorded — i.  e.,  eligible  to  record — is  only  required 
to  show  that  the  original  is  not  in  his  possession  or  con- 


DOCUMENTS  579 

trol,  and  this  may  sometimes  be  presumed  from  the  exis- 
tence of  other  facts. — Sax  v.  Wilkerson,  6  Kan.  App.  203, 
51  P.  299. 

Under  the  statute  the  record  of  an  instrument  entitled 
to  record  over  ten  years  old  is  admissible  in  evidence 
without  accounting  for  the  original. — Van  Hall  v.  Rea,  85 
Kan.   675,   118  P.   693. 

An  instrument  which  has  been  recorded  ten  years  is 
admissible  under  the  statute  although  defectively  acknowl- 
edged.—Masonic  Bldg.  Ass'n  v.  Gordon,  88  Kan.  266,  128 
P.  394. 

Montana.  Where  the  law  requires  a  record  of  any  instru- 
ment, the  record  itself  is  the  best  evidence  of  the  facts 
stated  in  the  instrument. — Flick  v.  Gold  Hill  &  L.  M.  Min. 
Co.,  8  Mont.  298,  20  P.  807. 

The  provisions  of  the  law  making  recorded  instruments 
competent  evidence  without  other  proof  of  execution  do 
not  embrace  instruments  not  required  by  law  to  be  re- 
corded.—Flick  v.  Gold  Hill  &  L.  M.  Min.  Co.,  8  Mont.  298, 
20  P.  807. 

The  statute  making  the  record,  or  a  certified  copy 
thereof,  competent  evidence  of  the  contents  of  documents 
required  by  law  to  be  recorded,  does  not  extend  to  outside 
or  extrinsic  facts,  although  in  the  record,  which  are  not 
required  by  law  to  be  recorded. — Flick  v.  Gold  Hill  &  L. 
M.  Min.  Co.,  8  Mont.  298,  20  P.  807. 

Deeds  or  conveyances  are  not  required  by  law  to  be  re- 
corded, hence  the  original  must  be  accounted  for  before 
secondary  evidence  of  the  contents  is  admissible. — Man- 
hattan Malting  Co.  v.  Swetland.  14  Mont.  269,  36  P.  84. 

Nebraska.  The  record  of  a  duly  executed,  acknowledged 
and  attested  instrument,  or  a  transcript  thereof,  is  admis- 
sible in  evidence  when  the  original  is  unobtainable. — Bur- 
bank  v.  Ellis,  7  Neb.  156;  First  Nat.  Bank  v.  Ridpath,  47 
Neb.  96,  66  N.  W.  37;  Horbach  v.  Tyrrell,  48  Neb.  514,  67 
N.  W.  485;  Thams  v.  Sharp.  49  Neb.  237.  68  N.  W.  474; 
Linton  v.  Cooper,  53  Neb.  400,  73  N.  W.  731;  McKenzie  v. 
Beaumont,  70  Neb.  179,  97  N.  W.  225. 


580  DOCUMENTS 

Nevada.  Instruments  executed,  acknowledged,  attested 
and  recorded  according  to  law  may  be  proved  by  the  ori- 
ginal or  a  certified  copy  of  the  record  without  further 
proof  of  execution. — Reno  Brewing  Co.  v.  Packard,  31  Nev. 
433,  103  P.  415. 

The  record  of  a  United  States  patent  for  lands  is  admis- 
sible in  evidence. — Reno  Brewing  Co.  v.  Packard,  31  Nev. 
433,  103  P.  415. 

New  Mexico.  The  record  of  an  instrument  entitled  to  be 
recorded  is  admissible  in  evidence  when  the  original  is  not 
in  the  hands  or  under  control  of  the  party  desiring  to  use 
the  same.— Tagliaferri  v.  Grande,  16  N.  M.  486,  120  P.  730. 

The  record  of  a  deed  recorded  over  thirty  years  is  ad- 
missible in  evidence  although  the  deed  was  defectively 
acknowledged. — Union  Land  &  G.  Co.  v.  Arce,  21  N.  M. 
115,  152  P.  1143. 

Oklahoma.  All  that  is  necessary  to  authorize  the  admis- 
sion in  evidence  of  the  records  of  the  register  of  deeds  as 
to  any  instrument  authorized  by  law  to  be  recorded  is  to 
produce  enough  evidence  to  satisfy  the  trial  court  of  the 
fact  that  the  original  is  not  in  the  possession  or  under 
the  control  of  the  party  offering  the  record.  (Records  ad- 
mitted upon  evidence  merely  by  defendant  that  he  did  not 
have  possession  of  the  originals,  no  cross-examination  be- 
ing made,  and  the  court  being  evidently  satisfied  that  the 
originals  were  not  in  his  possession  or  under  his  control.) 
— Dyal  v.  Norton,  (Old.),  150  P.  703. 

Oregon.  The  record  of  a  conveyance,  duly  recorded,  or  a 
transcript  thereof  duly  certified  may  be  read  in  evidence 
without  further  proof  of  execution. — Stanley  v.  Smith,  15 
Or.  505,  16  P.  174;  Series  v.  Series,  35  Or.  289,  57  P.  634. 

The  record  of  a  deed  is  competent  evidence  under  Hill's 
Code,  §  3028.— Stanley  v.  Smith,  15  Or.  505,  16  P.  174. 

South  Dakota.  Under  §  1213  Political  Code,  a  book  in 
which  is  recorded  .the  ordinances  of  a  city  is  admissible  in 
evidence  to  prove  the  provisions  of  an  ordinance. — Whaley 
v.  Vidal,  27  S.  D.  627,  132  N.  W.  242. 


DOCUMENTS  581 

Texas.  Instruments  permitted  to  be  recorded  or  required 
by  law  to  be  recorded,  which  have  been  or  may  be  recorded 
after  having  been  proved  as  provided  by  law,  are  admis- 
sible in  evidence  without  first  proving  the  execution. — 
Andrews  v.  Marshall,  26  Tex.  212;  Ballard  v.  Perry,  48  Tex. 
347;  Hancock  v.  Tram  Lumber  Co.,  65  Tex.  225;  Thomp- 
son v.  Johnson,  24  Tex.  Civ.  App.  246,  58  S.  W.  1030; 
Logan's  Heirs  v.  Logan,  31  Tex.  Civ.  App.  295,  72  S.  W. 
416. 

One  of  the  objects  of  the  recording  acts  is  to  perpet- 
uate the  proof  of  the  execution  of  the  instrument. — New- 
som  v.  Langford,   (Tex.  Civ.  App.),  174  S.  W.  1036. 

The  record  of  a  conveyance  takes  the  place  of  proof  of 
its  execution. — Hancock  v.  Tram  Lumber  Co.,  65  Tex.  225; 
Denman  v.  James,  (Tex.  Civ.  App.),  180  S.  W.  1157. 
Washington.  Gen.  Stat.,  §  209,  making  certified  copies  of 
records  of  instruments  prima  facie  evidence,  does  not  pre- 
vent the  original  instrument  from  being  offered  in  evi- 
dence.—Garneau  v.  Port  Blakely  Mill  Co.,  8  Wash.  467, 
36  P.  463;   Smith  v.  Veysey,  30  Wash.  18,  70  P.  94. 

CERTIFIED  COPIES. 

[See  Article  79.] 

GENERAL  RESULTS  OF  NUMEROUS  DOCUMENTS. 
Arizona.  Secondary  evidence  is  admissible  of  the  result 
of  an  examination  of  many  documents  where  the  examina- 
tion cannot  be  conveniently  made  by  the  court. — Schu- 
macher v.  Pina  County,  7  Ariz.  269,  64  P.  490. 
California.  Where  the  books  of  account  of  a  partnership 
appeared  to  have  been  so  improperly  kept  by  defendant, 
that  they  disclosed  little  of  the  partnership  affairs,  and  it 
was  stipulated  in  an  action  for  dissolution  and  accounting 
that  experts  should  make  new  books  from  the  old  ones, 
the  new  books,  so  made  were  competent  evidence. — Rob- 
erts v.  Eldred,  73  Cal.  -394,  15  P.  16. 

Where  books  of  account  and  records  are  voluminous 
covering  transactions  of  many  years,  a  schedule  thereof 
made  by  an  expert  is  competent  evidence. — San  Pedro 
Lumber  Co.  v.  Reynolds,  121  Cal.  74,  53  P.  410. 


582  DOCUMENTS 

The  general  result  of  an  examination  of  numerous  books 
and  accounts  may  be  testified  to  by  a  witness  who  has  ex- 
amined them  for  the  purpose,  when  the  same  could  not 
be  examined  by  the  court  without  great  loss  of  time. — 
People  v.  Doyle,  122  Cal.  486,  55  P.  581. 

That  the  negative  could  only  be  proven  by  the  intro- 
duction of  voluminous  records  is  sufficient  to  admit  parol 
testimony  of  the  custodian  to  the  effect  that  no  document 
such  as  in  question  appears  among  such  records. — Pacific 
Paving  Co.  v.  Gallett,   137  Cal.  174,  69   P.  985. 

Colorado.  Where  books,  records,  papers,  and  entries  are 
voluminous,  intricate,  or  of  such  a  character  as  to  render 
it  difficult  for  the  court  or  jury  to  arrive  at  a  correct  con- 
clusion concerning  their  contents,  resort  may  be  had  to 
the  aid  of  an  expert  bookkeeper  to  examine  and  explain 
the  meaning  of  entries  and  the  true  state  of  the  accounts, 
when  the  originals  are  in  the  court  subject  to  inspection. 
—Brown  v.  First  Nat.  Bank,  49  Colo.  393,  113  P.  483;  Le 
Master  v.  People.  54  Colo.  416,  131  P.  269. 

Idaho.  Where  the  original  documents  consist  of  numer- 
ous accounts  or  other  documents  which  cannot  be  exam- 
ined without  great  loss  of  time,  and  the  evidence  sought 
from  them  is  only  the  general  result  of  the  whole,  sec- 
ondary evidence  of  the  contents  may  be  received. — C.  C 
P.   (1908),  §  5998. 

Kansas.  Where  book  entries,  vouchers,  or  accounts  are 
voluminous  or  complicated,  the  testimony  of  a  competent 
witness,  who  made  an  examination  and  summary  thereof 
may  be  received. — Hames  y.  Goodlander,  73  Kan.  183,  84 
P.  986;  Bourquin  v.  Missouri  Pac.  Ry.  Co.,  8S  Kan.  183, 
127   P.   770. 

Where  the  evidence  consists  of  a  large  number  of  docu- 
ments and  book  entries  the  substance  may  be  testified  to 
by  one  who  is  familiar  with  the  documents  and  entries 
altho  he  may  not  have  made  the  entries  himself. — Darling 
v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  76  Kan.  893,  93  P.  612. 
Oregon.  Where  books,  papers  and  records  are  numerous, 
an  expert  who  has  examined  them  may  testify  to  the  re- 


DOCUMENTS  583 

suit  of  his  examination  and  investigation. — Salem  Light 
&  T.  Co.  v.  Anson,  41  Or.  562,  69  P.  675. 

Texas.  Where,  as  an  excuse  for  the  nonproduction  of  a 
document  to  be  used  as  evidence,  it  is  stated  that  the  evi- 
dence required  is  voluminous  and  would  take  much  time 
to  find  it,  secondary  evidence  may  be  introduced. — Kolp 
v.  Brazer,  (Tex.  Civ.  App.),  161  S.  W.  899. 

PRELIMINARY  QUESTIONS. 

Arkansas.  It  is  an  abuse  of  discretion  for  a  judge  to  admit 
secondary  evidence  of  a  document  where  the  alleged  cus- 
todian thereof  testifies  that  he  has  been  unable  to  find  it, 
but  by  further  search  might  find  it. — Wilburn  v.  State,  60 
Ark.    141,  29  S.  W.   149. 

California.  The  sufficiency  of  the  proof  of  loss  or  destruc- 
tion of  the  original  document  to  let  in  secondary  evidence 
of  the  contents,  is  for  the  trial  judge  to  decide. — California 
Nat.  Bank  v.  Weldon,  14  Cal.  App.  765,  113  P.  334. 

Montana.  Whether  or  not  sufficient  testimony  has  been 
heard  to  permit  the  introduction  of  secondary  evidence  of 
the  contents  of  a  written  instrument  rests  in  the  sound 
discretion  of  the  judge. — Kleinschmidt  v.  Dunphy,  1 
Mont.   118. 

Nebraska.  The  sufficiency  of  the  foundation  for  the  ad- 
mission of  secondary  evidence  of  the  contents  of  a  writing 
is  for  the  decision  of  the  trial  judge. — Bishop  v.  Lincoln 
B.  B.  Club,  98  Neb.  558,  153  N.  W.  5S6. 

Texas.  It  is  for  the  court  to  determine  whether  the  pre- 
liminary testimony  is  sufficient  to  authorize  the  admission 
of  secondary  evidence  of  its  contents. — Thompson  v.  John- 
son, 24  Tex.  Civ.  App.  246,  58  S.  W.  1030. 

Utah.  The  sufficiency  of  the  proof  of  loss  or  destruction 
of  the  original  document  to  let  in  secondary  evidence  of 
its  contents,  is  for  the  trial  judge  to  determine. — Walker 
Bros.  v.  Skliris,  34  Utah  353,  9S  P.  114. 


584  DOCUMENTS 

Article  72.* 
rules  as  to  notice  to  produce. 

Secondary  evidence  of  the  contents  of  the  docu- 
ments referred  to  in  article  71  (a),  may  not  be 
given  unless  the  party  proposing  to  give  such  sec- 
ondary evidence  has, 

if  the  original  is  in  the  possession  or  under  the 
control  of  the  adverse  party,  given  him  such  no- 
tice as  the  Court  regards  as  reasonably  sufficient 
to  enable  it  to  be  procured ;  (a)  or  has, 

if  the  original  is  in  the  possession  of  a  stranger 
to  the  action,  served  him  with  a  subpoena  duces 
tecum  requiring  its  production ;  (b) 

if  a  stranger  so  served  does  not  produce  the 
document,  and  has  no  lawful  justification  for  re- 
fusing or  omitting  to  do  so,  his  omission  does  not 
entitle  the  party  who  served  him  with  the  sub- 
poena to  give  secondary  evidence  of  the  contents 
of  the  document,  (c) 

Such  notice  is  not  required  in  order  to  render 
secondary  evidence  admissible  in  any  of  the  fol- 
lowing cases — 

(a)  Dwyer  v.   Collins,   7  Ex.   648;    [2   Wigmore  Ev.,    §   1202.] 

(b)  Newton  v.  Chaplin,  10  C.  B.  56-69;  [2  Wigmore  Ev.,  §§ 
1211-1213.] 

(c)  R.  v.  Llanfaethly,  2  E.  &  B.  940.  [This  case  seems  to 
have  been  obiter,  Earl,  J.,  distinctly  saying  that  the  notice 
to  produce  had  not  been  served  upon  the  right  person.  How- 
ever this  may  be,  we  think  that  in  this  country  the  court 
would  either  compel  the  witness  to  produce  (he  not  being 
justified  in  withholding  it),  or  allow  secondary  evidence. 
Bull    v.    Loveland,    10    Pick.    (Mass.)    14.] 

♦See  note  at  end  of  article. 


DOCUMENTS  585 

(1)  When  the  document  to  be  proved  is  itself 
a  notice; 

(2)  When  the  action  is  founded  upon  the  as- 
sumption that  the  document  is  in  the  possession 
or  power  of  the  adverse  party  and  requires  its 
production;   (d) 

(3)  When  it  appears  or  is  proved  that  the  ad- 
verse party  has  obtained  possession  of  the  ori- 
ginal from  a  person  subpoenaed  to  produce  it;  (e) 

(4)  When  the  adverse  party  or  his  agent  has 
the  original  in  court,   (f) 

NOTICE  TO  PRODUCE. 
Arkansas.  Proof  of  evasion  of  service  of  notice  to  pro- 
duce a  document,  will  dispense  with  actual  service  of  the 
notice. — Bright  v.  Pennywit,  21  Ark.  130. 
Oklahoma.  Where  a  party  is  properly  notified  to  produce 
a  document  shown  to  be  in  his  possession  and  fails  to  do 
so,  secondary  evidence  of  its  contents  is  admissible. — 
Harloe  v.  Lambie,  132  Cal.  133,  64  P.  88. 

Where  a  complaint  alleges  a  contract  by  correspond- 
ence part  of  which  is  alleged  to  be  in  defendant's  posses- 
sion and  that  plaintiff  can  only  state  the  terms  generally 
because  of  having  no  copy,  there  is  sufficient  notice  to 
produce  and  in  default,  secondary  evidence  is  admissible. 
—Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Kinkaid,  30  Okl.  699, 
120  P.  963. 

Oregon.     After  proof  that  a  letter  was  mailed  to  the  ad- 
verse party  and  that  he  has  been  properly  notified  to  pro- 


(d))  Haw  v.  Hall,  14  Ea.  247.  In  an  action  on  a  bond,  no 
notice  to  produce  the  bond  is  required.  See  other  illustra- 
tions in  2  Ph.  Ev.  373;  T.  E.  s.  422;    [2  Wigmore  Ev.,  §  1205.] 

(e)  Leeds   v.   Cook,    4   Esp.    256. 

(f)  Formerly  doubted,  see  2  Ph.  Ev.  278,  but  so  held  in 
Dwyer  v.  Collins,  7  Ex.  639;  [Brandt  v.  Klein,  17  Johns.  (N. 
Y.)  335;  Rhoades  v.  Selin,  4  Wash.  C.  Ct.  718;  Dana  v.  Boyd, 
2  J.  J.  Marsh,   (Ky.)  587;  Brown  v.  Isbell.  11  Ala.   1009.] 


586  DOCUMENTS 

duce  the  same,  secondary  evidence  of  its  contents  is  ad- 
missible upon  his  failure  to  produce  it. — Sugar  Pine  Door 
&  L.  Co.  v.  Garrett,  28  Or.  168,  42  P.  129. 

Where  a  writing  is  in  the  possession  of  the  adverse 
party  notice  to  produce  and  reasonable  time  is  necessary 
before  secondary  evidence  of  its  contents  is  admissible. 
—State  v.  Hanscom,  28  Or.  427,  43  P.  167;  Duggan  v.  City 
of  Emporia,    58   Or.   86,   113  P.   436. 

Texas.  Where  the  original  is  shown  to  be  in  the  hands 
of  the  adverse  party  who  refuses  to  produce  it  on  notice, 
secondary  evidence  may  be  received  of  its  contents. — King 
v.  Cisco  Compress  Co.,  35  Tex.  Civ.  App.  653,  81  S.  W.  114; 
Bunker  v.  State,  (Tex.  Cr.  R.),  177  S.  W.  108. 

Utah.  When  a  writing  is  traced  into  the  hands  of  a  party 
not  within  the  state,  secondary  evidence  of  its  contents 
may  be  given  without  notice  to  produce.- — Dwyer  v.  Salt 
Lake  City  Copper  Mfg.  Co.,  14  Utah  339,  47  P.  311. 

The  contents  of  letters  may  be  proved  by  the  party  who 
wrote  them  after  notice  to  produce  has  been  disregarded. 
—State  v.  Freshwater,  30  Utah  442,  85  P.  447. 

The  class  of  a  railway  ticket  upon  which  a  passenger 
was  riding  may  be  shown  by  parol  evidence  after  surren- 
der of  the  ticket  to  the  conductor  and  default  of  the  rail- 
way company  to  produce  the  original  after  proper  notice. 
— McCollum  v.  Southern  Pac.  Ry.  Co.,  31  Utah  494,  88  P. 
663;  Fitzgerald  v.  Southern  Pac.  Ry.  Co.,  31  Utah  510,  88 
P.  669. 

Washington.  Where  the  original  writing  is  traced  to  the 
adverse  party,  secondary  evidence  of  its  contents  is  ad- 
missible after  proper  notice  to  produce  and  failure  therein. 
— Nunn  v.  Jordan.  31  Wash.  506,  72  P.  124;  Keenan  v.  Lau- 
ritzen  Malt  Co.,  57  Wash.  367,  106  P.  1122;  Hanson  v. 
Columbia  &  P.  S.  R.  Co.,  75  Wash.  342,  134  P.  1058. 

WHEN   NOTICE  TO  PRODUCE  NOT  REQUIRED. 

Where  a  document  is  traced  to  the  hands  of  the  adverse 
party  who  admits  its  loss,  secondary  evidence  of  its  con- 
tents  is   admissible,   without   giving  notice   to   produce. — 


DOCUMENTS  587 

Barmby  v.  Plummer,  29  Neb.  64,  45  N.  W.  277;  Richardson 
v.  Fellner,  9  Okl.  513,  60  P.  270;  Cochran  v.  Bank  of  Tut- 
tle,  31  Okl.  171,  120  P.  652. 

Arizona.  Where  a  letter  written  to  his  wife  by  a  defend- 
ant in  a  criminal  prosecution  is  in  her  possession  she  can- 
not be  compelled  to  produce  the  same  for  use  as  evidence, 
and  the  contents  may  be  established  by  secondary  evi- 
dence.—De  Leon  v.  Territory,  9  Ariz.  161,  80  P.  348. 
California.  Where  the  adverse  party  has  a  duplicate  of 
an  alleged  destroyed  instrument  sued  on,  no  notice  to  pro- 
duce is  necessary. — Nicholson  v.  Tarpey,  70  Cal.  608,  12 
P.  778. 

Colorado.  Notice  to  produce  a  writing  is  unnecessary 
where  it  appears  that  it  is  beyond  the  jurisdiction  of  the 
court.— Owers  v.  Olathe  Silver  Min.  Co.,  6  Colo.  App.  1, 
39  P.  980. 

Kansas.  Where  a  party  testifies  that  the  writing  is  not 
in  existence  notice  to  produce  is  unnecessary. — Brentshaw 
v.  Laney,  77  Kan.  497,  94  P.  805. 

Nebraska.  Where  a  party  to  an  action  desires  to  give 
evidence  aliunde  of  the  existence  or  contents  of  a  private 
writing  which  has  been  delivered  to  the  adverse  party,  the 
better  practice  is  to  serve  a  timely  notice  upon  such  party 
or  his  attorney  to  produce  the  writing  at  the  trial;  but 
such  notice  may  be  dispensed  with  upon  proof  that  such 
party  has  said  that  such  writing  has  been  lost  or  destroyed. 
—Barmby  v.  Plummer,  29  Neb.  64,  45  N.  W.  277. 

Oklahoma.  Where  the  original  document  is  traced  to  the 
hands  of  the  adverse  party,  notice  to  produce  the  same  is 
unnecessary.— Cochran  v.  Bank  of  Tuttle,  31  Okl.  171,  120 
P.  652. 

Where  a  petition  alleges  a  contract,  consisting  of  letters 
and  telegrams,  between  plaintiff  and  defendant,  and  that 
one  of  the  writings  is  a  telegram  sent  by  plaintiff,  and  now 
in  the  possession  of  defendant,  and  that  plaintiff  has  no 
copy  of  it,  and  cannot  state  definitely  its  contents,  the 
averments  of  the  petition  were  sufficient  notice  to  defend- 
ant, in  possession  of  the  writing,  to  permit  secondary  evi- 


588  DOCUMENTS 

dence  of  its  contents. — Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
Kinkaid,  30  Okl.  699,  120  P.  963. 

Oregon.  A  notice  to  produce  a  document  is  unnecessary 
where  it  has  been  wrongfully  obtained  or  withheld  by  the 
adverse  party. — Code,  §  712;  Duggan  v.  City  of  Emporia, 
58  Or.  86,  113  P.  436. 

Texas.  Where  the  instrument  which  a  party  desires  to 
use  as  evidence  has  been  wrongfully  obtained  by  the  ad- 
verse party,  secondary  evidence  may  be  introduced  to 
prove  its  contents  without  notice  to  produce. — Prieto  v. 
Hunt,   (Tex.  Civ.  App.),  167  S.  W.  4. 

Utah.  Where  a  writing  is  traced  into  the  hands  of  a  party 
without  the  state  no  notice  to  produce  is  neecssary  to 
admit  secondary  evidence  of  its  contents. — Dwyer  v.  Salt 
Lake  City  Copper  Mfg.  Co.,  14  Utah  339,  47  P.  311. 

In  an  action  against  a  railroad  for  injuries  caused  by  the 
derailment  of  a  train,  a  letter  to  a  section  foreman  defin- 
ing the  speed  limit  over  the  track,  may  be  testified  to  by 
parol  without  producing  the  letter  or  notice  to  produce. 
—Johnson  v.  Union  Pacific  R.  Co.,  35  Utah  285,  100  P.  390. 

In   Possession   of  Accused   Defendant. 
Arizona.     Where  a  document  is  in  the  possession  of  the 
wife  of  a  defendant  in  a  criminal  prosecution,  no  notice 
to  produce  is  necessary  to  let  in  secondary  evidence  of  its 
contents. — De  Leon  v.  Territory,  9  Ariz.  161,  80  P.  348. 
Kansas.     That  a  document  was  made  in  duplicate  and  one 
copy  lost,  the  other  in  the  possession  of  the  defendant  in 
a  criminal  prosecution,  is   sufficient  to  warrant  the  intro- 
duction of  secondary  evidence  of  its  contents,  as  the  court 
has  no  power  to  compel  the  accused  to  produce  evidence 
against    himself. — State    v.    Gurnee,    14    Kan.    111. 
Oklahoma.     Where    a    writing    is    in    the    possession    of   a 
defendant  in   a  criminal   prosecution,   secondary  evidence 
of  its  contents  is  admissible. — Grayson  v.  State,  (Okl.  Cr.), 
154  P.  334. 

Oregon.  A  defendant  in  a  criminal  prosecution  cannot 
be  compelled  to  produce  a  writing  to  be  used  as  evidence 
against  him  and  no  notice  to  produce  such  a  document  is 


DOCUMENTS  589 

necessary  to  let  in  secondary  evidence. — State  v.  Hanscom, 
28  Or.  427,  43  P.  167. 

Texas.  A  defendant  in  a  criminal  prosecution  cannot  be 
compelled  to  produce  a  written  instrument  to  be  used  as 
evidence  against  him. — Meredith  v.  State,  (Tex.  Cr.  R.), 
164  S.  W.  1018. 

Washington.  A  defendant  in  a  criminal  prosecution  can- 
not be  compelled  to  produce  a  writing  to  be  used  as  evi- 
dence against  him,  and  no  notice  to  produce  such  a  doc- 
ument is  necessary  to  let  in  secondary  evidence  of  its 
contents.— State  v.  McCauley,  17  Wash.  88,  49  P.  221. 

When   Writing   Itself  Is   Notice. 
Oregon.     A  notice  to  produce  a  writing  is  not  necessery 
where  it  itself  is  notice.— Code,  §  712;   Duggan  v.  City  of 
Emporia,  58   Or.   86,   113   P.   436. 

Action  Presuming  Possession  of  Adverse  Party. 
Oklahoma.  Where  the  p#per  is  of  such  a  nature  that  the 
party  must  know  that  it  is  indispensable  to  his  adversary, 
no  notice  to  produce  other  than  such  as  is  given  by  the 
pleadings  is  necessary,  but  notice  must  be  taken  and  the 
document  produced  at  the  trial. — Atchison,  T.  &  S.  F.  Ry. 
Co.  v.  Kinkaid,  30  Okl.  699,  120  P.  963. 
Oregon.  No  notice  need  be  given  to  produce  a  document 
which  is  the  subject  of  an  indictment  in  order  to  admit 
secondary  evidence  of  its  contents. — State  v.  Hanscom, 
28   Or.    427,   43    P.    167. 

Texas.  Where  the  adverse  party  must  necessarily  know 
that  he  is  charged  with  possession  of  the  writing,  notice 
to  produce  the  instrument  is  unnecessary. — Reliance  Lum- 
ber Co.  v.  Western  Union  Tel.  Co.,  58  Tex.  394. 

NOTE   xxiz. 
(To    Article    72.) 

For  these  rules  in  greater  detail,  see  [2  Wigmore  Ev.,  § 
1202  et  seq.],  1  Ph.  Ev.  452-453,  and  2  Ph.  Ev.  272-289:  T. 
E.  ss.   419-426;   R.   N.  P.  8  &  9. 

The  principle  of  all  the  rules  is  fully  explained  in  the 
cases   cited    in   the   footnotes,   more   particularly    in    Dwyer    v. 


590  DOCUMENTS 


Collins,  7  Ex.  639.  In  that  case  it  is  held  that  the  object 
of  notice  to  produce  is  "to  enable  the  party  to  have  the  doc- 
ument in  court,  and  if  he  does  not,  to  enable  his  opponent 
to  give  parol  evidence  *  *  *  to  exclude  the  argument 
that  the  opponent  has  not  taken  all  reasonable  means  to 
procure  the  original,  which  he  must  do  before  he  can  be  per- 
mitted to  make  use  of  secondary  evidence"    (pp.   647-648). 


DOCUMENTS  591 

CHAPTER  X. 

PROOF  OF  PUBLIC  DOCUMENTS. 

Article  73. 
proof  of  public  documents. 

When  a  statement  made  in  any  public  docu- 
ment, register,  or  record,  judicial  or  otherwise, 
or  in  any  pleading  or  deposition  kept  therewith 
is  in  issue,  or  is  relevant  to  the  issue  in  any  pro- 
ceeding, the  fact  that  that  statement  is  contained 
in  that  document,  may  be  proved  in  any  of  the 
ways  mentioned  in  this  chapter,  (a) 

PROOF  OF  JUDICIAL   RECORDS. 

California.  An  alleged  opinion  by  the  trial  judge  in  a  case, 
unsigned  or  unauthenticated  is  inadmissible  in  evidence 
in  connection  with  the  judgment  roll  of  the  case. — Wixson 
v.  Devine,  67  Cal.  341,  7  P.  776. 

A  judgment  must  be  proved  by  the  record  of  its  entry, 
or,  after  proof  of  its  destruction,  by  parol. — Von  Vetsera, 
ex  parte,  7  Cal.  App.  136,  93  P.  1036. 

Colorado.  The  record  of  a  judgment  or  a  transcript  there- 
of is  the  best  evidence  to  show  the  fact  of  its  recovery 
and  the  amount. — Watson  v.  Hahn,  1  Colo.  385. 

A  clerk's  statements  as  to  the  amount  of  costs  in  case 
are  the  best  evidence  of  the  amount  thereof,  and  a  certi- 
fied copy  thereof  is  admissible  in  evidence. — Thalheimer 
v.  Crow,  13  Colo.  397,  22  P.  779. 

A  properly  authenticated  record  of  proceedings  in  a  jus- 
tice court  is  admissible  in  evidence  to  establish  the  judg- 
ment.—Baur  v.   Beall,   14  Colo.   383,   23   P.  345. 

The  record  of  a  judgment  containing  a  recital  that 
money  was  deposited  with  the  clerk  of  court  to  be  applied 

(b)   See  articles  36  and  90. 


592  DOCUMENTS 

in  satisfaction  thereof,  is  admissible  in  evidence  in  an 
action  against  the  clerk  for  failure  to  turn  over  to  his  suc- 
cessor moneys  deposited  with  him. — McCune  v.  People,  8 
Colo.  App.  430,  46  P.  1083. 

The  record  or  a  certified  copy  thereof  of  a  decree  is  ad- 
missible to  prove  the  existence  or  rendition  of  a  judg- 
ment, but  when  offered  to  prove  an  estoppel  or  the  adju- 
dication of  a  certain  fact  it  must  be  accompanied  by  the 
judgment  roll.— Bovee  v.  Boyle,  25  Colo.  App.  165,  136  P. 
467;  King  v.  Foster,  26  Colo.  App.  120,  140  P.  930;  Empire 
Ranch  &  C.  Co.  v.  Lumelius,  24  Colo.  App.  49,  131  P.  796; 
Ross  v.  Newsom,  25  Colo.  App.  393,  138  P.  1015;  Empire 
Ranch  &  C.  Co.  v.  Weldon,  26  Colo.  App.  Ill,  141  P.  138. 

For  the  purpose  of  proving  the  existence  and  contents  of 
a  judgment,  or  the  mere  rendition  thereof,  the  record  en- 
try, or  an  authenticated  copy,  is  sufficient. — Terry  v.  Gib- 
son,  23   Colo.  App.   273,   12S   P.   1127. 

Kansas.  Certified  copies  of  the  acts  and  proceedings  had 
before  a  probate  judge  while  in  fact  acting  as  a  subordi- 
nate officer  of  the  district  court  in  other  than  probate 
matters  cannot  be  certified  to  by  his  successor  as  probate 
judge.  The  legal  custodian  must  make  the  certificate. — 
Bowersock  v.  Adams,  55  Kan.  681,  41  P.  971. 

The  records  of  the  probate  court  are  admissible  in  evi- 
dence on  appeal  to  the  district  court,  to  show  the  facts 
relative  to  a  claim  filed  in  the  probate  court. — Jordan  v. 
Bevans,  10  Kan.  App.  428,  61  P.  985. 

A  certificate  of  a  probate  judge  that  no  administrator 
had  ever  been  appointed  for  a  decedent  in  the  county,  or 
that  there  was  no  administration  on  his  behalf,  is  not 
competent  evidence  under  par.  4820,  Gen.  Stat.  1901. — 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Vance,  64  Kan.  686,  68  P.  606. 

A  certified  copy  of  the  appointment  of  a  guardian  in  an- 
other county  is  admissible  to  prove  the  fact,  but  it  may 
also  be  proved  by  other  evidence. — Black  v.  Morris,  90 
Kan    64,  .132   P.   1185. 

Montana.  A  conviction  must  be  proved  by  the  record  of 
the  judgment.— State  v.   Howard,   30   Mont.  518,  77   P.   50. 


DOCUMENTS  593 

Oklahoma.  A  certified  copy  of  a  judgment  entry  is  ad- 
missible to  prove  the  rendition  and  contents  of  the  judg- 
ment, but  when  it  is  relied  upon  as  an  estoppel,  or  to  es- 
tablish any  particular  fact,  a  complete  and  duly  authenti- 
cated copy  of  the  entire  proceedings  is  necessary. — Oliver 
v.  Gimbel,  38   Okl.  50,  132  P.  144. 

Oregon.  The  record  of  the  cause  in  which  perjury  is  al- 
leged to  have  been  committed  must  be  introduced  in  evi- 
dence.—State  v.  Kalyton,  29  Or.  375,  45  P.  756. 

Texas.  A  record  required  by  law  to  be  kept  is  the  best 
evidence,  although  certified  copies  are  made  admissible  by 
statute;  the  records  of  district  courts,  not  certified  copies 
thereof,  are  the  best  evidence. — Manning  v.  State,  46  Tex. 
Cr.   R.  326,  81   S.  W.  957. 

A  copy  of  an  indictment  having  no  certificate  is  inad- 
missible without  proof  that  it  is  an  examined  copy. — John- 
son v.  State,   (Tex.  Cr.  R.),  149  S.  W.  165. 

An  original  supersedeas  bond  filed  in  another  county  is 
admissible  in  evidence  without  proof  of  execution,  where 
the  execution  is  not  denied  by  affidavit. — Garrett  v.  Gris- 
ham,  (Tex.  Civ.  App.),  156  S.  W.  505. 

To  prove  an  order  of  court  it  must  be  first  shown  that 
there  was  such  an  order  and  that  the  same  was  entered 
on  the  minutes.  Proof  cannot  be  made  extraneous  of  the 
record. — Tourtelot  v.  Booker,  (Tex.  Civ.  App.),  160  S.  W. 
293. 

Where  it  is  necessary  to  prove  that  a  prosecution  had 
been  begun,  and  a  warrant  issued,  the  complaint  itself 
and  warrant,  or  properly  certified  copies  are  essential. 
The  contents  cannot  be  proved  by  parol. — Baskins  v.  State, 
(Tex.  Cr.  R.),  171  S.  W.  723. 

Washington.  The  clerk  of  the  court  being  the  proper  cus- 
todian of  the  record,  his  certificate  to  a  certified  copy  of 
the  record  of  a  former  judgment  is  sufficient,  without  the 
judge's  certificate  that  he  is  such  custodian. — Bignold  v. 
Carr.   21    Wash.   413,   64   P.   519. 

A  transcript  of  a  justice's  docket  showing  the  proceed- 
ings complained  of  in  a  suit  for  malicious  prosecution,  is 


594  DOCUMENTS 

competent  evidence. — Kerstetter  v.  Thomas,  36  Wash.  620, 
79  P.  290. 

Wyoming.  In  the  absence  from  the  certificate  to  an  al- 
leged certified  copy  of  the  record  of  a  case  tried  before  a 
justice  of  the  peace,  of  a  showing  that  the  person  signing 
it  was  a  justice  of  the  peace  at  the  time  of  signing  same, 
or  that  he  was  the  custodian  of  the  record,  such  alleged 
certified  copy  is  inadmissible  in  evidence. — Stamper  v. 
Gay,  3  Wyo.  322,  23  P.  69. 

Article  74. 
production  of  document  itself. 

The  contents  of  any  public  document  whatever 
may  be  proved  by  producing  the  document  itself 
for  inspection  from  proper  custody,  and  identify- 
ing it  as  being  what  it  professes  to  be. 

PRODUCTION    OF   DOCUMENT    ITSELF. 

The  original  files  in  another  suit  pending  in  a  different 
court  are  admissible  to  show  the  proceedings. — Foster  v. 
State,  8  Okl.  Cr.  R.  139,  126  P.  835;  Garrett  v.  Grisham, 
(Tex.  Civ.  App.),  156  S.  W.  505;  Baskins  v.  State,  (Tex. 
Cr.  R.),  171  S.  W.  723. 

Arkansas.  The  statute  making  certified  copies  admissible 
in  evidence  does  not  exclude  the  original  document  as 
such.— Winn  v.  Whitehouse,   96   Ark.   42,   131   S.  W.   70. 

A  judgment  of  a  justice  of  the  peace  of  a  sister  state 
must  be  proved  by  the  production  of  the  original  minutes, 
or  by  oath  of  a  witness  who  has  compared  the  copy  pro- 
duced in  evidence  with  the  original. — Blackwell  v.  Glass, 
43  Ark.  209;   Albright  v.  Mickey,   (Ark.),  137  S.  W.  568. 

To  warrant  the  introduction  in  evidence  of  an  original 
complaint  in  another  suit,  it  must  be  accompanied  by  a 
showing  of  permission  to  withdraw  the  pleading  from  the 
files.— Missouri  &  N.  A.  R.  R.  Co.  v.  Johnson,  (Ark.),  171 
S.  W.  478. 


DOCUMENTS  595 

California.  A  statute  which  makes  duplicate  assessment 
rolls  evidence,  applies  to  the  originals  after  the  enact- 
ment of  a  subsequent  statute  dispenses  with  the  keeping 
of  duplicate  rolls. — Lake  County  v.  Sulphur  Bank  Q.  M. 
Co.,  66  Cal.  17,  4  P.  876. 

The  statute  making  copies  competent  evidence  does  not 
exclude  the  introduction  of  the  original.— People  v.  Allen, 
113  Cal.  264,  45  P.  327. 

An  original  judgment  roll  of  a  case  tried  in  another 
county  is  competent  evidence  without  proof  of  authority 
for  its  removal.  Whether  or  not  removed  without  author- 
ity is  of  no  consequence  to  a  defendant  in  a  criminal  prose- 
cution.—People  v.  Allen,  113  Cal.  264,  45  P.  327. 

Colorado.  The  official  records  of  a  city  containing  the 
ordinances  and  minutes  of  the  proceedings  of  the  city 
council  of  such  city,  properly  attested  and  identified,  are 
competent  evidence  to  show  the  passage  of  an  ordinance. 
—City  of  Greeley  v.  Hamman,  17  Colo.  30,  28  P.  460. 

If  a  county  court  permits  one  of  its  record  books  to  be 
taken  into  another  court,  the  objection  that  the  original 
and  not  a  certified  copy  is  produced  is  untenable. — Mc- 
Allister v.  People,  28  Colo.  156,  63  P.  308. 

Statute  making  certified  copies  competent  evidence  does 
not  disqualify  the  original. — McAllister  v.  People,  28  Colo. 
156,  63  P.  308;  Grimes  v.  Greenblatt,  47  Colo.  495,  107  P. 
1111;  Empire  Ranch  &  C.  Co.  v.  Lanning,  49  Colo.  458,  113 
P.   491. 

The  original  record  of  a  matter  heard  before  a  justice 
of  the  peace  is  admissible  in  evidence. — Grimes  v.  Green- 
blatt,  47   Colo.   495,   107   P.   1111. 

To  prove  the  mere  rendition  of  a  judgment,  the  decree 
itself  is  admissible,  but  when  offered  to  prove  an  estoppel 
it  must  be  accompanied  by  the  judgment  roll. — Bovee  v. 
Boyle,  25  Colo.  App.  165,  136  P.  467;  King  v.  Foster,  26 
Colo.  App.  120,  140  P.  930;  Empire  Ranch  &  C.  Co.  v. 
Lumelius,  24  Colo.  App.  49,  131  P.  796;  Empire  Ranch  &  C. 
Co.  v.  Weldon,  26  Colo.  App.  Ill,  141  P.  138. 


596  DOCUMENTS 

Idaho.  Original  pleadings,  records  and  files  of  inferior 
courts  are  admissible  as  evidence  and  the  proof  is  not  re- 
stricted to  copies. — Keenan  v.  Washington  Liquor  Co.,  8 
Ida.  383,  69  P.  112. 

Kansas.  Original  statements  made  for  taxation  purposes 
are  required  by  law  to  be  kept,  and  are  competent  evi- 
dence.— Bowersock  v.  Adams,   55  Kan.  681,  41  P.  971. 

To  show  the  amount  of  taxes  levied,  a  tax  roll  prepared 
by  the  county  clerk  and  placed  in  the  hands  of  the  county 
treasurer  for  collection,  is  competent  evidence. — Smith 
v.   Scully,   66  Kan.   139,   71  P.   249. 

A  volume  of  public  records  is  not  discredited  as  evidence 
because  it  contains  an  original  paper  instead  of  a  copy 
thereof.— Scott  v.  Williams,  74  Kan.  448,  87  P.  550. 
Montana.  The  statute  making  certified  copies  admissible 
in  evidence  does  not  exclude  the  original  document. — 
McKinstry  v.  Clark,  4  Mont.  370,  1  P.  759;  Garfield  M.  &  M. 
Co.  v.  Hammer,  6  Mont.  53,  8  P.  153. 
Nevada.  Where  the  original  document  is  produced  from 
the  proper  custodian  it  need  not  be  certified  by  him  before 
being  admissible  in  evidence,  simply  because  copies  are 
required  by  statute  to  be  certified. — State  v.  Nevada  Cent. 
R.  Co.,   26   Nev.   357,   68   P.   294. 

North  Dakota.  Statutory  provisions  making  certified 
copies  admissible  in  evidence  do  not  exclude  the  introduc- 
tion of  the  original  document. — Harmening  v.  Howland, 
25  N.  D.  38,  141  N.  W.  131. 

Texas.  The  statute  making  a  certified  copy  admissible  in 
evidence  does  not  exclude  the  introduction  of  the  original 
instrument. — Garrett  v.  Grisham,  (Tex.  Civ.  App.),  156  S. 
W.  505;  Kimmons  v.  Abraham,  (Tex.  Civ.  App.),  158  S. 
W.   256. 

Utah.  Exemplifications  of  the  record  of  a  United  States 
patent,  may  be  obtained  for  use  as  evidence,  and  it  is  error 
to  admit  the  original.— Bullion-B.  &  C.  Min.  Co.  v.  Eureka 
Hill  Min.  Co.,  5  Utah  3,  11  P.  515. 

Washington.  The  statute  making  certified  copies  com- 
petent evidence  does  not  exclude  the  original  document. 


DOCUMENTS  597 

— Garneau  v.  Port  Blakeley  Mill  Co.,  8  Wash.  467,  36  P. 
463;   Smith  v.  Veysey,  30  Wash.  18,  70  P.  94. 

The  fact  that  an  original  paper  was  found  in  the  Gen- 
eral Land  Office  instead  of  the  local  office  where  it  prop- 
erly belonged,  does  not  discredit  it  as  evidence. — Sylvester 
v.  State,  46  Wash.  585,  91  P.  15. 

The  recording  of  a  document  not  required  by  law  to  be 
recorded  does  not  exclude  the  original  as  evidence. — Rich- 
ards v.  Bussell,  70  Wash.  554,  127  P.  198. 

Article  75.* 
examined  copies. 

The  contents  of  any  public  document  whatever 
may  in  all  cases  be  proved  by  an  examined  copy. 

An  examined  copy  is  a  copy  proved  by  oral 
evidence  to  have  been  examined  with  the  original 
and  to  correspond  therewith.  The  examination 
may  be  made  either  by  one  person  reading  both 
the  original  and  the  copy,  or  by  two  persons,  one 
reading  the  original  and  the  other  the  copy,  and 
it  is  not  necessary  (except  in  peerage  cases  (a) ), 
that  each  should  alternately  read  both,  (b) 

EXAMINED  COPIES. 
"Every  copy,  except  the  sort  mentioned  post,  §  1280, 
par.  2  (where  the  witness  to  the  accuracy  of  the  copy  is 
not  himself  the  transcriber,  but  testifies  from  recollection 
of  contents  of  original),  is  in  strictness  an  'examined'  copy, 
in  the  sense  that  the  original  and  the  copy  have  been  ex- 
amined  or  compared   together  by   the   witness,   either   in 

(a)  Slane   Peerage  Case,   5   C.   &  F.    42. 

(b)  2  Ph.  Ev.  200,  231;  T.  E.  ss.  1379,  1389;  R.  N.  P.  113; 
[2   Wigmore   Ev.,    §    1273.] 

•See  note  at  end  of  article. 


598  DOCUMENTS 

his  own  act  of  transcription  or  by  taking  some  one  else's 
transcription  and  comparing  it  with  the  original,  ante, 
§  1265.  But  the  term  'examined  copy'  has  by  tradition 
come  to  be  associated  with  a  copy  made  by  a  private  per- 
son not  the  official  custodian  of  the  instrument.  Thus  the 
terms  'examined'  or  'sworn'  are  used  for  copies  sworn  to 
upon  the  stand  as  correct,  in  distinction  from  'certified' 
or  'attested'  or  'office'  copies,  i.  e.,  copies  made  in  the 
public  office  by  the  official  custodian,  where  the  document 
is  an  official  one." — 2  Wigmore  Ev.,  §   1273. 

California.  A  copy  of  an  alleged  lost  document,  shown  to 
be  a  correct  copy  by  a  witness  who  compared  it  with  the 
original  is  admissible  in  evidence. — Dyer  v.  Hudson,  65 
Cal.  372,  4  P.  235. 

New  Jersey.  The  third  kind  of  authenticated  copy  (be- 
sides "exemplified"  and  "office"  copies)  is  an  examined  or 
sworn  copy,  which  is  proved  by  producing  a  witness  who 
has  compared  the  copy  with  the  original  record,  word  for 
word,  or  who  has  examined  the  copy  while  another  person 
read  the  original.  These  are  the  various  methods  of  prov- 
ing judicial  records  by  a  copy. — West  Jersey  Traction  Co. 
v.  Board  of  Public  Works,  57  N.  J.  L.  313,  30  Atl.  581. 

New  York.  "The  copy  answer  of  the  plaintiff  Pearl  Kel- 
logg to  a  bill  in  chancery,  filed  against  him  by  the  de- 
fendant, was  rightfully  excluded  as  evidence.  As  a  copy 
of  the  answer  on  file  it  was  to  be  proved  as  other  trans- 
cripts, that  is,  by  a  witness  who  had  compared  the  copy 
line  for  line  with  the  original,  or  who  had  examined  the 
copy  while  another  person  read  the  original.  Had  the 
trial  been  in  the  same  court,  and  in  the  same  cause,  the 
office  copy  of  the  answer  served  by  the  solicitor  of  the 
plaintiff  would  have  been  competent  evidence. " — Kellogg 
v.  Kellogg,  6  Barb.  116,  130. 

Oklahoma.  A  witness  cannot  testify  that  a  paper  purport- 
ing to  be  a  copy  of  an  alleged  lost  document  is  a  true 
copy  thereof,  unless  such  testimony  is  supported  by  the 
evidence  of  the  person  who  made  the  alleged  copy. — 
Kasenberg  v.  Hartshorn,   30   Okl.  417,   120  P.  956. 


DOCUMENTS  599 

Texas.  A  judgment  of  a  court  of  a  sister  state  may  be 
proved  by  a  witness  who  has  compared  the  copy  offered 
in  evidence  with  the  original  on  file  in  such  court. — Har- 
vey v.  Cummings,  68  Tex.  599,  5  S.  W.  513;  Tourtelot  v. 
Booker,   (Tex.  Civ.  App.),   160  S.  W.  293. 

Where  a  document  of  public  nature  would  itself  be  evi- 
dence if  produced,  and  which  could  not  be  removed  with- 
out inconvenience  to  the  public  interests,  its  contents  may 
be  proved  by  an  examined  copy  verified  by  some  person. 
— Smithers  v.  Lowrance,  100  Tex.  77,  93  S.  W.  1064;  Texas 
&  P.  Ry.  Co.  v.  Graham  &  Price,  (Tex.  Civ.  App.),  174  S. 
W.  297. 

It  being  the  duty  of  the  Commissioner  of  the  General 
Land  Office  to  keep  his  records  open  for  the  inspection  of 
the  public,  it  is  to  be  presumed  that  a  record  pointed  out 
by  him  as  the  record  of  the  classification  of  lands  in  cer- 
tain counties  is  the  record  he  declares  it  to  be,  and  copies 
of  such  records  are  admissible  in  evidence  when  sup- 
ported by  the  testimony  of  a  witness  that  he  made  and 
examined  them  from  the  books  pointed  out  by  the  com- 
missioner as  being  such  records. — Smithers  v.  Lowrance, 
100  Tex.  77,  93  S.  W.  1064. 

A  deed  recorded  in  another  state  may  be  proved  by  an 
examined  copy.— Frost  v.  Wolf,  77  Tex.  455,  14  S.  W.  440. 

As  a  circumstance  tending  to  show  the  execution  and 
contents  of  an  alleged  lost  deed,  examined  copies  of  the 
record  of  such  deed  recorded  in  another  state  are  admis- 
sible.—Rice  Institute  v.  Freeman,  (Tex.  Civ.  App.),  145 
S.  W.  688. 

If  ;i  law  requires  the  keeping  of  a  record,  and  the  gen- 
uineness thereof  is  proved,  an  examined  copy  is  admissible 
in  evidence. — Guerra  v.  San  Antonio  Sewer  Pipe  Co.,  — 
(Tex.  Civ.  App.),  163  S.  W.  669. 

NOTE    XXX. 

(To  Article  75.) 

Mr.  Phillips  (ii.  196)  says,  that  upon  a  plea  of  nul  tiel 
record,  the  original  record  must  be  produced  if  it  is  in  the 
same   court. 


600  DOCUMENTS 

Mr.  Taylor  (s.  1379)  says,  that  upon  prosecutions  for  per- 
jury assigned  upon  any  judicial  document  the  original  must 
be  produced.  The  authorities  given  seem  to  me  hardly  to 
bear  out  either  of  these  statements.  They  show  that  the 
production  of  the  original  in  such  cases  is  the  usual  course, 
but  not,  I  think,  that  it  is  necessary.  The  case  of  Lady 
Dartmouth  v.  Roberts,  16  Ea.  334,  is  too  wide  for  the  propo- 
sition for  which  it  is  cited.  The  matter,  however,  is  of  little 
practical    importance. 


Article  76. 
[general  federal  or  state  records.] 

[Copies  of  books,  records,  papers,  or  docu- 
uments  in  any  of  the  executive  departments  of 
public  offices  of  the  Federal  government,  authen- 
ticated under  the  seals  of  such  departments  or 
offices,  respectively,  and  certified  by  the  proper 
officers  thereof  shall  be  admitted  in  evidence 
equally  with  the  originals  thereof,  (a) 

Statutes  in  every  jurisdiction  have  been  passed 
attempting  to  regulate  and  admit  in  evidence 
certified  copies  of  public  documents  in  state  of- 
fices.]   (b) 

GENERAL  FEDERAL  OR  STATE   RECORDS. 

Arizona.  Where  the  statute  makes  certain  transcripts 
competent  evidence,  it  is  error  to  exclude  a  proper  trans- 
cript accompanied  by  other  authenticated  papers  explana- 
tory of  the  issues  involved  which  come  from  the  proper 
governmental  department  of  the  United  States. — United 
States  v.  Drachman,  5  Ariz.  13,  43  P.  222. 


a   [Rev.    Stat.    U.   S.    §§    882-898;    3   Wigmore   Ev.,    §    1680,   p. 
2134.] 

b    [See  Wigmore  Ev.,   §   1680.] 


DOCUMENTS  601 

California.  A  copy  of  a  map  filed  in  the  office  of  the  reg- 
ister of  the  land  office,  certified  to  by  him  is  admissible  in 
evidence.— Goodwin  v.   McCabe,   75   Cal.   584,   17   P.   705. 

The  result  of  the  United  States  census  may  be  shown 
by  the  certified  copy  of  the  superintendent  of  the  census. 
—People  v.  Williams,  64  Cal.  87,  29  P.  939. 

A  properly  certified  copy  of  the  record  of  a  patent  is 
admissible  in  evidence. — Preston  v.  Hirsch,  5  Cal.  App. 
485,  90  P.  965. 

Kansas.  A  certified  copy  of  a  paper  deposited  in  the  land 
office  may  be  received  in  evidence  in  same  manner  and 
with  like  effect  as  original. — Stinson  v.  Geer,  42  Kan.  520, 
22  P.   586. 

Montana.  A  copy  of  a  declaratory  statement,  certified  by 
the  receiver  of  the  land  office,  without  a  seal  or  verification 
under  oath,,  is  properly  excluded  under  C.  C.  P.  1872,  § 
542.— Chambers  v.  Jones,  17  Mont.  156,  42  P.  758. 

A  copy  of  a  paper  certified  to  by  one  as  "acting  commis- 
sioner" of  the  land  office,  otherwise  properly  authenticated, 
is  sufficient. — Murray  v.  Polglase,  17  Mont.  455,  43  P.  505. 

Texas.  Certified  copies  of  the  entries  in  the  books  of  the 
internal  revenue  collector  are  admissible  in  evidence  to 
show  the  issuance  of  a  license  to  sell  intoxicating  liquor. — 
Columbo  v.  State,  (Tex.  Cr.  R.),  145  S.  W.  910. 

A  letter  which  was  received  by  the  Land  Commissioner 
in  pursuit  of  his  official  duties  is  properly  a  part  of  his 
records,  and  a  certified  copy  thereof  is  admissible  in 
evidence. — Robertson  v.  Brothers,  (Tex.  Civ.  App.),  139 
S.  W.  657;  Robertson  v.  Talmadge,  (Tex.  Civ.  App.),  174 
S.  W.  627. 

A  certified  copy  of  the  findings,  opinion,  argument,  and 
judgment  of  the  Interstate  Commerce  Commission  is  ad- 
missible in  evidence. — Pecos  &  N.  T.  Ry.  Co.  v.  Porter, 
(Tex.  Civ.  App.),  156  S.  W.  267. 

The  facts  recited  in  an  ex  parte  affidavit  filed  in  the 
Land  Office,  made  for  the  purpose  of  securing  the  issuance 
of  a  duplicate  land  certificate  cannot  be  shown  by  a  cer- 


602  DOCUMENTS 

tified  copy.— Magee  v.  Paul,  (Tex.  Civ.  App.),  159  S.  W. 
325. 

Where  the  original  document  is  properly  archived  in  the 
county  clerk's  office,  or  in  the  General  Land  Office,  a  cer- 
tified copy  is  admissible. — Sullivan  v.  Fant,  (Tex.  Civ. 
App.),  160  S.  W.  612;  Robertson  v.  Talmadge,  (Tex.  Civ. 
App.),   174   S.  W.   627. 

Washington.  Where  a  contract  upon  which  the  action  was 
based  was  written  on  the  back  of  a  document  required  to 
be  filed  in  the  General  Land  Office  and  whence  it  could 
not  be  removed,  a  certified  copy  of  the  contract  made  by 
the  custodian  of  such  document  was  admissible  in  evi- 
dence.—Sayward  v.  Gardner,  5  Wash.  247,  31  P.  761,  33 
P.  389. 

The  fact  that  an  original  paper  was  found  in  the  General 
Land  Office  instead  of  the  local  office  where  it  properly  be- 
longed, does  not  discredit  it  as  evidence,  and  a  duly  cer- 
tified copy  of  such  instrument  is  admissible  in  evidence. 
—Sylvester  v.  State,  46  Wash.  585,  91  P.  15. 

A  certified  copy  of  a  marriage  license  is  admissible  to 
show  age,  it  being  the  duty  of  the  officer  to  determine  and 
record  such  fact. — Armstrong  v.  Modern  Woodmen  of 
America,   (Wash.),  160  P.  946. 

Article  77.* 
exemplifications. 

An  exemplification  is  a  copy  of  a  record  set  out 
either  under  the  Great  Seal  or  under  the  Seal  of 
a  Court. 

A  copy  made  by  an  officer  of  the  Court,  bound 
by  law  to  make  it,  is  equivalent  to  an  exemplifi- 
cation, though  it  is  sometimes  called  an  office 
copy. 

An  exemplification  is  equivalent  to  the  6riginkl 
document  exemplified. 

•See  note  at  end  of  article. 


DOCUMENTS  603 

EXEMPLIFICATIONS. 

Arkansas.  An  exemplification  of  the  record  of  the  same 
court  is  not  sufficient  to  sustain  the  issue  under  a  plea  of 
nul  tiel  record.  The  original  must  be  produced. — Adams 
v.  State,  11  Ark.  466. 

Where  an  original  deed  is  lost,  and  the  subscribing  wit- 
ness dead,  after  a  long  lapse  of  time  an  exemplification 
of  an  unauthorized  record  may  be  admitted  in  evidence 
as  tending  to  show  the  execution  of  the  original. — Tram- 
mell  v.  Thurmond,  17  Ark.  263. 

Kansas.  An  exemplification  of  an  original  document  filed 
in  the  department  of  the  interior,  and  certified  to  by  the 
commissioner  of  the  General  Land  Office  to  be  a  literal 
copy,  is  admissible  in  evidence  with  like  effect  as  the 
original,  when  attested  by  the  officer  having  custody  of 
the  original. — Rierson  v.  St.  Louis  &  S.  F.  Ry.  Co.,  59 
Kan.  32,  51  P.  901. 

New  Jersey.  "There  is  a  difference  in  the  methods  by 
which  judicial  records  and  by  which  public  records  are 
provable.  Judicial  records  are  provable  by  exemplified 
copies.  An  exemplified  copy  at  common  law  was  obtained 
by  removing  the  record  into  the  court  of  chancery 
by  certiorari.  The  great  seal  was  attached  to  a  copy, 
which  was  transmitted  by  a  mittimus  to  the  court  in 
which  it  was  to  be  used  as  evidence.  In  this  country,  says 
Prof.  Greenleaf,  the  great  seal  usually,  if  not  always, 
being  kept  by  the  secretary  of  state,  a  different  course 
prevails;  and  an  exemplified  copy  under  the  seal  of  the 
court  is  usually  admitted,  even  upon  a  plea  of  nul  tiel 
record,  as  sufficient  evidence." — West  Jersey  Traction  Co. 
v.  Board  of  Public  Works,  57  N.  J.  L.  313,  30  Atl.  581. 

Texas.  Exemplifications  of  the  records  of  another  state 
not  authenticated  as  required  by  law,  are  inadmissible  in 
evidence. — Newsom  v.  Langford,  (Tex.  Civ.  App.),  174  S. 
W.   1036. 

ULah.     The  laws  of  the  United  States  require  all  patents 

i  the  Gel  i    oilice    to    be    recorded    in    that 

office,    and    the    commissioner   is   required    to    furnish    ex- 

emplifications  thereof  when  required  by  interested  parties; 


604  DOCUMENTS 

and  such  exemplifications,  authenticated  by  the  seal  of 
and  certificate  of  the  commissioner,  are  made  evidence 
equally  with  the  originals  thereof. — Bullion,  Beck  &  Cham- 
pion Min.  Co.  v.  Eureka  Hill  M.  Co.,  5  Utah  3,  11  P.  515. 


Article  78.* 
copies  equivalent  to  exemplifications. 

A  copy  made  by  an  officer  of  the  Court,  who  is 
authorized  to  make  it  by  a  rule  of  Court,  but  not 
required  by  law  to  make  it,  is  regarded  as  equiv- 
alent to  an  exemplification  in  the  same  Cause  and 
Court,  but  in  other  Causes  or  Courts  it  is  not  ad- 
missible unless  it  can  be  proved  as  an  examined 
copy. 

COPIES   EQUIVALENT   TO    EXEMPLIFICATIONS. 

New  Jersey.  In  addition  to  copies  exemplified  by  the  great 
seal,  or  seal  of  a  court,  there  were  certified  copies  made 
by  the  officer  in  custody  of  the  judicial  records,  and  known 
as  "office  copies."  These  were  admissible  only  in  the 
same  cause  and  in  the  same  court. — West  Jersey  Traction 
Co.  v.  Board  of  Public  Works,  57  N.  J.  L.  313,  30  Atl.  581. 

NOTE  XXXI. 
(To  Articles  77  and  78.) 

The  learning  as  to  exemplifications  and  office-copies  will 
be  found  in  the  following  authorities:  [2  Wigmore  Ev.,  § 
1273];  Gilbert's  Law  of  Evidence,  11-20;  Buller,  Nisi  Prius, 
228,  and  following;  Starkie,  256-266  (fully  and  very  conveni- 
ently); 2  Ph.  Ev.  196-200;  T.  E.  ss.  1380-1384;  R.  N.  P.  112- 
115.  The  second  paragraph  of  article  77  is  founded  on  Apple- 
ton  v.   Braybrook,   6   M.   &   S.   39. 

As  to  exemplifications  not  under  the  Great  Seal,  it  is  re- 
markable that  the  Judicature  Acts  give  no  Seal  to  the  Su- 
preme Court,  or  the  High  Court,  or  any  of  its  divisions. 

♦See  note  at  end  of  article. 


DOCUMENTS  605 

Article  79. 
certified  copies. 

It  is  provided  by  many  statutes  that  various 
certificates,  official  and  public  documents,  docu- 
ments and  proceedings  of  corporations,  and  of 
joint-stock  and  other  companies,  and  certified 
copies  of  documents,  bye-laws,  entries  in  registers 
and  other  books,  shall  be  receivable  in  evidence 
of  certain  particulars  in  Courts  of  Justice,  pro- 
vided they  are  respectively  authenticated  in  the 
manner  prescribed  by  such  statutes,  (a) 

Whenever,  by  virtue  of  any  such  provision,  any 
such  certificate  or  certified  copy  as  aforesaid  is 
receivable  in  proof  of  any  particular  in  any  Court 
of  Justice,  it  is  admissible  as  evidence  if  it  pur- 
ports to  be  authenticated  in  the  manner  pre- 
scribed by  law  without  proof  of  any  stamp,  seal, 
or  signature  required  for  its  authentication  or  of 
the  official  character  of  the  person  who  appears 
to  have  signed  it.  (b) 


(a)  8  &   9   Vict.   c.    113,   preamble.      Many   such   statutes  are 

In    T.    E.    s.    14  40    and    following   sections.      See,    too, 
K.    N.    1'.    LI 4-115.      [3    Wigmore  Ev.,   §    1677   et  seq.]. 

(b)  8  &   9  Vict.  c.   113,  s.  1.     I  believe  the  above  to  be  the 
1    of  the  provision,  but  the  language  is  greatly  condensed. 

Some  words  ;it  the  end  of  the  section  are  regarded  as  un- 
meaning by  several  text  writers.  See,  e.  g.,  R.  N.  P.  116; 
2  I'll  i:v.  241;  T.  B.  s.  7,  note  1.  Mr.  Taylor  says  that  the 
concluding  words  of  the  section  were  introduced  into  the 
Act  while  passing  through  the  House  of  Commons.  He  adds, 
th.-y  appear  to  have  been  copied  from  1  &  2  Vict.  c.  94,  s.  13, 
is.e  art.  76)  "by  some  honorable  member  who  did  not  know 
distinctly  what  he  was  about."  They  certainly  add  nothing 
to  the  sense. 


606  DOCUMENTS 

Whenever  any  book  or  other  document  is  of 
such  a  public  nature  as  to  be  admissible  in  evi- 
dence on  its  mere  production  from  the  proper  cus- 
tody, and  no  statute  exists  which  renders  its  con- 
tents provable  by  means  of  a  copy,  any  copy 
thereof  or  extract  therefrom  is  admissible  in 
proof  of  its  contents,  (c)  provided  it  purport  to 
be  signed  and  certified  as  a  true  copy  or  extract 
by  the  officer  to  whosccustody  the  original  is  en- 
trusted. Every  such  officer  must  furnish  such 
certified  copy  or  extract  to  any  person  applying 
at  a  reasonable  time  for  the  same,  upon  payment 
of  a  reasonable  sum  for  the  same,  not  exceeding 
fourpence  for  every  folio  of  ninety  words,  (d) 

CERTIFIED  COPIES. 

Proof  By  Certified  Copies. 
California.     Authenticated   copy  of  the    record    is    prima 
facie  evidence  of  the  due  execution  of  the  original  deed. 
—Anthony  v.  Chapman,  65  Cal.  73,  2  P.  889. 

Where  the  original  document  is  in  the  custody  of  a  pub- 
lic officer,  a  certified  copy  is  admissible  to  prove  the  con- 
tents.—Dyer  v.  Hudson,  65  Cal.  372,  4  P.  235. 

A  certified  copy  of  the  record  of  a  deed  may  be  read  in 
evidence  when  the  original  is  not  in  the  possession  or 
under  the  control  of  the  person  offering  the  copy,  and  is 
prima  facie  evidence  of  the  execution  of  the  original. — 
Bennett  v.  Green.  74  Cal.  425,  16  P.  231;  Green  v.  Green, 
103  Cal.  108,  37  P.  188. 

Colorado.     Matters  of  record  may  be  proven  by  certified 
copies.— McAllister  v.  People,  28  Colo.  156,  63  P.  308;   Em- 

:       i   !| 

(c)  The  words  "provided  it  be  proved  to  be  an  examined 
copy  or  extract,  or,"  occur  in  the  Act,  but  are  here  omitted, 
because   their  effect  is   given   in  article   75. 

(d)  14  &  15  Vict.  c.   99,  s.   14. 


.    DOCUMENTS  607 

pire  Ranch  &  C.  Co.  v.  Lumelius,  24  Colo.  App.  49,  131 
P.  796. 

Kansas.  A  certified  copy  of  an  instrument  executed  and 
delivered  to  defendant  and  filed  for  record  by  him,  may 
be  given  in  evidence  with  same  effect  as  the  original,  as 
it  will  be  presumed  that  the  latter  is  in  the  possession  or 
under  the  control  of  defendant.— Eby  v.  Winters,  51  Kan. 
777,   33   P.   471. 

Where  original  statements  made  for  taxation  purposes 
would  be  competent  evidence,  but  are  not  in  possession  or 
control  of  the  party,  certified  copies  are  admissible. — 
Bowersock  v.  Adams,  55  Kan.  681,  41  P.  971. 

Montana.  The  original  record  of  a  properly  acknowledged 
and  recorded  instrument,  or  a  certified  copy  of  such  rec- 
ord may  be  read  in  evidence  with  the  same  effect  as  the 
original.— First  Nat.  Bank  v.  Roberts,  9  Mont.  323,  23  P. 
718;  Capell  v.  Fagan,  30  Mont.  507,  77  P.  55. 

New  Mexico.  In  a  prosecution  for  larceny  it  is  only  nec- 
essary to  introduce  a  certified  copy  of  a  recorded  brand 
where  the  evidence  of  ownership  depends  upon  the  brand. 
—Gale  &  Farr  v.  Salas,  11  N.  M.  211,  66  P.  520;  State  v. 
Analla,  18  N.  M.  294,  136  P.  600. 

Texas.  Copies  of  maps  from  the  General  Land  Office  are 
admissible  in  evidence  when  properly  certified. — Houston 
v.  Blythe,  60  Tex.  506. 

Where  a  document  of  public  nature  would  itself  be 
evidence  if  produced,  and  which  could  not  be  removed 
without  inconvenience  to  the  public  interests,  its  contents 
may  be  proved  by  a  certified  copy. — Smithers  v.  Lowrance, 
100  Tex.  77,  93  S.  W.  1064;  Texas  &  P.  Ry.  Co.  v.  Graham 
&  Price,  (Tex.  Civ.  App.),  174  S.  W.  297. 

Public  documents  and  records  may  be  proved  by  cer- 
tified copies.— Robertson  v.  Brothers.  (Tex.  Civ.  App.), 
139  S.  W.  657;  Rudolph  v.  Tinsley,  (Tex.  Civ.  App.),  143 
S.  W.  209;  Columbo  v.  State,  (Tex.  Cr.  R.),  145  S.  W.  910; 
Whitaker  v.  Browning,  (Tex.  Civ.  App.).  155  S.  W.  1197; 
Sullivan  v.  Fant.  (Tex.  Civ.  App.),  160  S.  W.  612;  Robert- 
son v.  Talmadge.   (Tex.  Civ.  App.),   174  S.  W.  627. 


608  DOCUMENTS    . 

Where  the  original  document  is  properly  archived  in 
the  county  clerk's  office,  a  certified  copy  is  admissible  in 
evidence. — Sullivan  v.  Fant,  (Tex.  Civ.  App.),  160  S.  W. 
612;  Robertson  v.  Talmadge,  (Tex.  Civ.  App.),  174  S.  W. 
627. 

Utah.  The  record  or  a  certified  copy  thereof  of  a  duly 
executed  instrument  may  be  read  in  evidence  when  the 
original  is  beyond  the  control  of  the  party  offering  such 
record  or  copy. — Comp.  Laws  (1907),  §  3409;  Dwyer  v. 
Salt  Lake  City  Copper  Mfg.  Co.,  14  Utah  339,  47  P.  311. 
Washington.  Any  writing  recorded  or  filed  for  record  ac- 
cording to  law  may  be  proved  by  a  certified  copy  of  the 
record  to  all  intents  and  purposes  as  the  original. — R.  & 
B.  Codes  and  Stats.,   (1910),  §  1260. 

A  certified  copy  of  a  mortgage  from  the  records  of  the 
county  auditor's  office  is  admissible  in  evidence,  without 
further  proof  of  execution  than  the  acknowledgment  there- 
on.—Howard  v.  Gemming,  10  Wash.  30,  38  P.  766. 

A  certified  copy  of  the  record  of  a  deed  properly  authen- 
ticated by  the  custodian  is  admissible  in  evidence  without 
proving  the  genuineness  of  the  original. — Ball.  Ann.  Codes 
&  Stat.,  §  6046;  Chrast  v.  O'Connor,  41  Wash.  360,  83  P.  238. 

An  instrument  lawfully  recorded  in  Alaska  may  be  ad- 
mitted in  evidence  to  show  the  admissions  of  the  party 
executing  the  same. — Pearce  v.  Greek  Boys'  Min.  Co.,  48 
Wash.  38,  92  P.  773. 

Authority  to   Register,  File  and  Certify. 

Arkansas.  Before  a  certified  copy  of  records  of  instru- 
ment of  another  state  is  admissible,  it  must  be  shown 
that  the  statutes  of  such  state  authorized  registration. — 
McNeill  v.  Arnold,  17  Ark.  154. 

Idaho.  Where  the  law  requires  a  record  of  a  document  to 
be  made,  a  certified  copy  of  the  record  is  admissible  in 
evidence. — Black  Canyon  Irr.  Dist.  v.  Marple,  19  Ida.  176, 
112  P.  766. 

Montana.  The  statute  makes  a  certified  copy  or  the  rec- 
ord of  an  instrument  required  by  law  to  be  recorded  ad- 
missible in  evidence  with  like  effect  and  in  like  manner 


DOCUMENTS  609 

as  the  original.— McKinstry  v.  Clark,  4  Mont.  370,  1  P.  759; 
Flick  v.  Gold  Hill  &  L.  M.  Min.  Co.,  8  Mont.  298,  20  P.  807 
To  prove  the  lawful  incorporation  of  a  company  in  an- 
other state,  it  must  be  shown  that  the  laws  of  such  state 
authorized  its  incorporation.  A  certified  copy  of  the  rec- 
ord of  incorporation  only  does  not  go  far  enough. — Mil- 
waukee Gold  Ex.   Co.  v.  Gordon,  37   Mont.  209,  95  P.  995. 

New  Jersey.  A  paper  certified  by  the  secretary  of  state, 
under  his  seal,  to  be  a  true  copy  of  a  description  of  routes 
of  a  trolley  line,  filed  in  his  office,  is  not  evidence. — West 
Jersey  Traction  Co.  v.  Board  of  Public  Works,  57  N.  J. 
L.  313,   30  Atl.   581. 

A  paper  purporting  to  be  a  certified  copy  of  a  public 
document,  although  certified  by  the  officer  in  whose  cus- 
tody it  is  placed,  whether  under  seal  or  not,  is  not  receiv- 
able in  evidence  unless  such  certification  be  enjoined  or 
permitted  by  statute. — West  Jersey  Traction  Co.  v.  Board 
of   Public  Works,   57   N.   J.   L.   313,   30  Atl.   581. 

North  Dakota.  Certified  copies  of  parish  records  from 
Norway  of  recorded  births,  marriages  and  deaths,  tending 
to  establish  respondents  to  be  heirs  of  deceased,  held  in- 
admissible for  want  of  proof,  as  a  foundation  for  their  ad- 
mission, of  the  foreign  law  requiring  such  registration  as 
an  official  duty. — Peterson's  Estate,  In  re,  22  N.  D.  4S0, 
134  N.  W.  751. 

Certified  copies  of  parish  records  from  Norway  of  re- 
corded births,  deaths  and  marriages,  purported  to  be  cer- 
tified by  the  pastors  as  keepers  of  the  records,  authenti- 
cated under  seal  by  district  judges  as  to  genuineness  of 
the  pastor's  signatures  and  that  the  records  were  kept 
pursuant  to  requirements  of  law,  and  reauthenticated  by 
higher  church  officials,  and  all  certified  under  seal  of  office 
as  to  verity  of  signatures,  faith  and  credit  to  be  given, 
and  as  made  under  lawful  authority  in  turn  by  the  Ameri- 
can consul  residing  in  Kristiana.  Norway,  held,  insuffi- 
cient to  warrant  the  reception  in  evidence  of  such  docu- 
ments so  certified,  without  further  proof  that  the  foreign 
law  was  not  in  writing. — Peterson's  Estate,  In  re.  22  N. 
D.  480,  134  N.  W.  751. 


610  DOCUMENTS 

South  Dakota.  A  certified  copy  of  a  record,  or  a  certif- 
icate of  the  contents  thereof  is  inadmissible  in  evidence 
in  the  absence  of  statutory  authority  for  the  making  of 
the  record  of  such  certificate. — Davis  v.  Davis,  24  S.  D. 
474,  124  N.  W.  715;  State  v.  Flagstad,  25  S.  D.  337,  126  N. 
W.  585;  Murray  v.  Johnson,  28  S.  D.  571,  134  N.  W.  206; 
McKinnon  v.  Puller,  33  S.  D.  582,  146  N.  W.  910. 
Texas.  It  is  only  such  documents  as  are  required  or  per- 
mitted by  law  to  be  filed  in  a  public  office  so  as  to  con- 
stitute them  archives  or  records,  that  may  be  proved  by 
copies,  certified  under  the  authority  of  such  office. — Hern- 
don  v.  Casiano,  7  Tex.  322;  State  v.  Cardinas,  47  Tex.  250; 
Hatchett  v.  Connor,  30  Tex.  110;  Lott  v.  King,  79  Tex.  292, 
15  S.  W.  231;  Southwestern  Surety  Ins.  Co.  v.  Anderson, 
(Tex.),  155  S.  W.  1176. 

The  statute  authorizing  the  introduction  in  evidence  of 
a  certified  copy  of  the  record  of  a  deed  applies  only  to 
deeds  properly  recorded  within  the  state,  not  to  those  re- 
corded in  other  states  conveying  lands  in  Texas. — William- 
son v.  Work,  33  Tex.  Civ.  App.  369,  77  S.  W.  266;  Rice  In- 
stitute v.  Freeman,   (Tex.  Civ.  App.),  145  S.  W.  688. 

A  copy  of  an  alleged  birth  record  unaccompanied  by 
proof  of  any  law  requiring  the  keeping  thereof,  or  of  the 
genuineness  of  the  original  record,  or  that  it  is  certified 
by  the  proper  person,  is  inadmissible  in  evidence. — Guerra 
v.  San  Antonio  Sewer  Pipe  Co.,  (Tex.  Civ.  App.),  163  S. 
W.  669. 

If  a  law  requiring  the  keeping  of  a  record,  and  the  genu- 
ineness thereof  is  proved,  a  certified  copy  of  such  record 
is  admissible  provided  the  genuineness  of  the  signature 
of  the  certifying  officer  is  properly  authenticated. — Guerra 
v.  San  Antonio  Sewer  Pipe  Co.,  (Tex.  Civ.  App.),  163  S. 
W.  669. 

Officers  Authorized  To  Certify. 
Kansas.  The  county  clerk  and  not  the  county  treasurer 
is  the  legal  custodian  of  redemption  notices  required  to  be 
given  before  the  execution  of  a  tax  deed,  hence  a  certified 
copy  made  by  the  latter  is  inadmissible  in  evidence. — Berg- 
man v.  Bullitt,  43  Kan.  709,  23  P.  938. 


DOCUMENTS  611 

Manner  of  Certifying. 
Arkansas.     An  alleged  transcript  of  a  public  document  not 
certified  to  be  correct  by  the  proper  custodian  is  not  ad- 
missible   in   evidence. — Winn   v.    Whitehouse,    96   Ark.    42, 
131  S.  W.  70. 

Kansas.  Where  the  official  character  of  a  letter  is  ap- 
parent upon  its  face,  the  certification  of  a  copy  need  not 
state  that  it  is  official  in  order  that  it  may  be  introduced 
in  evidence.— Darcy  v.  McCarthy,  35  Kan.  722,  12  P.  104. 
The  certificate  should  show  that  alleged  copies  of  papers 
filed  in  public  offices  are  copies  of  the  originals  and  not 
of  transcripts  to  entitle  certified  copies  to  admission  as 
evidence. — Drumm  v.  Cessnum,  58  Kan.  331,  49  P.  78. 
Oregon.  The  requirement  of  a  statute  that  copies  used  as 
evidence  shall  be  compared  by  the  certifying  officer  and 
certified  to  be  correct,  is  satisfied  when  such  officer  on  the 
witness  stand  testifies  that  he  had  compared  the  alleged 
copies  with  the  originals. — Oregon  R.  &  N.  Co.  v.  Coolidge, 
59  Or.  5,  116  P.  93. 

Texas.  A  copy  of  an  indictment  having  no  certificate  is 
inadmissible  in  evidence  in  the  absence  of  proof  that  it  is 
an  examined  copy. — Johnson  v.  State,  (Tex.  Cr.  R.),  149 
S.  W.   165. 

Accounting  For  Original. 
California.     A  certified  copy  of  the  resolutions  of  a  board 
of  directors  of  a  corporation  is  admissible  without   proof 
of  the  loss  of  the  records. — Purser  v.  Eagle  Lake  Land  & 
Irr.  Co.,  Ill  Cal.  139,  43  P.  523. 

Kansas.  Certified  copies  of  the  records  of  conveyances 
are  admissible  in  evidence  where  the  original  cannot  be 
produced. — Bernstein  v.  Smith.  10  Kan.  60;  Meskimen  v. 
Day.  35  Kan.  46,  10  P.  14;  Gildehaus  v.  Whiting,  39  Kan. 
706,  18  P.  916;  Rullman  v.  Barr,  54  Kan.  643.  39  P.  179; 
Van  Hali  v.  Rea,  85  Kan.  675,  118  P.  693;  Masonic  Bldg. 
Ass'n  v.  Gordon,  88  Kan.  266,  128  P.  394. 

The  certified  record  of  a  patent  is  admissible  without 
proof  that  the  original  is  lost,  destroyed  or  beyond  con- 
trol of  party  offering  it. — Bernstein  v.  Smith,  10  Kan.  60. 

A  certified  copy  of  the  register  made  up  from  birth  cer- 


612  DOCUMENTS 

tificates  furnished  by  physicians  and  midwives  in  com- 
pliance with  the  law,  is  admissible  in  evidence  with  the 
same  effect  as  the  original  without  accounting  for  the  ori- 
ginal.—State  v.  Miller,  90  Kan.  230,  133  P.  878. 
Montana.  A  certified  copy  of  the  record  of  a  location  no- 
tice is  admissible  in  evidence  without  accounting  for  the 
original. — McKinstry  v.  Clark,  4  Mont.  370,  1  P.  759;  Gar- 
field M.  &  M.  Co.  v.  Hammer,  6  Mont.  53,  8  P.  153. 

Where  the  statute  makes  a  certified  copy  evidence,  the 
copy  is  admissible  without  accounting  for  the  original. 
—McKinstry  v.  Clark,  4  Mont.  370,  1  P.  759;  Garfield  M.  & 
M.  Co.  v.  Hammer,  6  Mont,  53,  8  P.  153. 
Nebraska.  A  certified  transcript  of  the  record  of  a  deed 
duly  recorded  may  be  read  in  evidence  with  like  force  and 
effect  as  the  original  when  the  latter  is  unavailable. — 
Thams  v.  Sharp,  49  Neb.  237,  68  N.  W.  474. 
Oklahoma.  Certified  copies  of  deeds  may  be  received  in 
evidence  to  prove  an  instrument  authorized  to  be  recorded, 
when  the  original  is  not  in  the  possession  or  under  the 
control  of  the  party  desiring  to  use  the  same. — Dyal  v. 
Norton,    (Okl.),   150   P.   703. 

Certificate  of  Particular  Facts. 

California.  A  certificate  by  the  secretary  of  state  that 
articles  of  incorporation  were  issued  on  a  certain  date,  is 
not  equivalent  to  a  certified  copy  of  the  articles  to  prove 
the  issuance  thereof.— Wall  v.  Mines,  130  Cal.  27,  62  P.  386. 

Oklahoma.  Certificates  of  county  Officers  purporting  to 
show  the  contents  of  their  records,  are  not  competent  evi- 
dence, unless  authorized  by  statute. — Marlow  v.  School 
District,   29    Okl.   304,   116   P.   797. 

Texas.  Though  the  certificate  of  the  Commissioner  of  the 
General  Land  Office  of  his  conclusions  from  his  records  is 
not  admissible  in  evidence,  he  may  certify  to  such  facts 
as  directly  and  not  circumstantially  appear  from  such 
papers,  documents  or  records,  including  the  statement  that 
the  records  upon  which  a  certain  classification  appears 
were  those  in  his  office  during  certain  years. — Smithers 
v.  Lowrance,  100  Tex.  77,  93  S.  W.  1064. 


DOCUMENTS  613 

A  certificate  of  facts  alleged  to  appear  in  public  records 
is  not  admissible  to  show  the  contents  of  such  records. — 
Sullivan  v.  Fant,   (Tex.  Civ.  App.),  160  S.  W.  612. 

Registers  and  Documents  Certified. 
Arizona.     The  records  of  the  war  department  at  Washing- 
ton concerning  the  contract  in  suit,  may  be  shown  by  a 
properly  authenticated  transcript  thereof. — United   States 
v.  Drachman,  5  Ariz.  13,  43  P.  222. 

A  certified  copy  of  a  recorded  location  notice  may  be 
read  in  evidence  with  like  effect  as  if  the  original  had  been 
produced.— Score  v.  Griffin,  9  Ariz.  295,  80  P.  331. 
Arkansas.  A  certified  copy  of  the  record  of  a  conveyance 
is  admissible  in  evidence  without  proof  of  the  execution. 
—Sibley  v.  England,  90  Ark.  424,  119  S.  W.  820. 

A  patent  may  be  proved  by  the  original  itself  or  by  a 
certified  copy  of  the  record  under  the  seal  of  the  Patent 
Office  and  certified  by  the  Commissioner  of  Patents  or  his 
chief  assistant.— Ensign  &  Co.  v.  Coffelt,  102  Ark.  568,  145 
S.  W.  231. 

California.  Certified  copies  of  the  record  of  instruments 
acknowledged  or  proved  and  certified  according  to  law 
may  be  read  in  evidence  without  further  proof. — Landers 
v.  Bolton,  26  Cal.  393;  Murray  v.  Tulare  I.  Co.,  120  Cal. 
311,  49  P.  563;  McGorray  v.  Robinson,  135  Cal.  312,  67  P. 
279;   McDougall  v.  McDougall,  135  Cal.  316,  67  P.  778. 

Certified  copies  of  the  records  of  deeds  are  admissible 
in  evidence.— Bennett  v.  Green,  74  Cal.  425,  16  P.  231; 
Green  v.  Green,  103  Cal.  108,  37  P.  186;  Adams  v.  Hopkins, 
144  Cal.  19,  77  P.  712;  Central  Pac.  Ry.  Co.  v.  Droge,  171 
Cal.  32,  151  P.  663;  Preston  v.  Hirsch,  5  Cal.  App.  485, 
90   P.   965. 

Documents  filed  in  the  office  of  the  register  of  the  land 
office  may  be  proved  by  certified  copies. — Goodwin  v. 
McCabe,  75  Cal.  584,  17  P.  705. 

Kansas.  Original  statements  made  for  taxation  purposes 
are  required  by  law  to  be  kept,  and  where  the  same  are  not 
in  the  possession  or  control  of  the  party  desiring  to  in- 
troduce them  in  evidence,  certified  copies  thereof  are  ad- 
missible.— Bowersock  v.  Adams,  55  Kan.  681,  41  P.  971. 


614  DOCUMENTS 

Montana.  Certified  copies  of  records  of  certificates  of  in- 
corporation and  of  location  certificates  are  admissible. — 
Garfield  M.  &  M.  Co.  v.  Hammer.  6  Mont.  53,  8  P.  153. 
North  Dakota.  A  certified  copy  of  the  records  of  the  Uni- 
ted States  collector  of  internal  revenue  is  admissible  in 
evidence.— State  v.  McKone,  (N.  D.),  154  N.  W.  256. 
Oklahoma.  A  certified  transcript  from  the  office  of  the 
collector  of  internal  revenue  is  admissible  in  evidence  to 
prove  the  issuance  of  a  license  to  sell  intoxicating  liquors. 
—Hargrove  v.  State,  8  Okl.  Cr.  487,  129  P.  74. 

A  certified  copy  of  the  record  of  the  internal  revenue 
collector  is  admissible  in  evidence  to  prove  payment  of  the 
tax  required  of  dealers  in  liquors. — Blunk  v.  State,  10  Okl. 
Cr.  203,  135  P.  946. 

Texas.  A  certified  copy  of  the  record  of  a  deed  is  admis- 
sible as  a  circumstance  tending  to  prove  that  it  was  duly 
executed. — Burleson  v.  Collins,  (Tex.  Civ.  App.),  29  S.  W. 
688;  Logan  v.  Logan,  31  Tex.  Civ.  App.  295,  72  S.  W.  416; 
Moody  v.  Ogden,  31  Tex.  Civ.  App.  395,  72  S.  W.  253. 

A  certified  copy  of  the  record  of  any  instrument  affect- 
ing title  to  lands  is  admissible  in  evidence  when  proper 
predicate  is  laid;  Art.  3700,  R.  S. — Whitaker  v.  Browning, 
(Tex.  Civ.  App.),  155  S.  W.  1197. 

A  certified  copy  of  the  record  of  a  deed  which  has  been 
recorded  more  than  30  years  is  admissible  in  evidence  as 
would  the  original  have  been. — Rudolph  v.  Tinsley,  (Tex. 
Civ.  App.),  143  S.  W.  209. 

Copies  of  transcribed  records  of  conveyances  are  admis- 
sible in  evidence  with  like  effect  as  certified  copies  of  the 
original  record. — Wacaser  v.  Rockland  Savings  bank,  (Tex. 
Civ.  App.),  172  S.  W.  737. 

A  certified  copy  of  the  record  of  the  Railroad  Commis- 
sion is  admissible  in  evidence. — Missouri,  K.  &  T.  Ry.  Co. 
v.  Empire  Express  Co.,  (Tex.  Civ.  App.),  173  S.  W.  222. 
Utah.  Properly  authenticated  copies  of  the  record  of  a 
United  States  patent  to  lands  are  admissible  in  evidence. 
—Tate  v.  Rose,  35  Utah  240,  99  P.  1003. 
Washington.  A  county  clerk's  certified  copy  of  a  con- 
stable's bond  is  admissible  in  evidence. — State  v.  Yourex, 
30  Wash.   611,   71  P.   203. 


DOCUMENTS  615 

In  an  action  for  malicious  prosecution,  the  proceedings 
complained  of  may  be  proved  by  a  transcript  of  the  jus- 
tice's docket.— Kerstetter  v.  Thomas,  36  Wash.  620,  79 
P.  290. 

The  admission  of  a  party  contained  in  a  document  may 
be  proved  by  a  certified  copy  thereof  taken  from  the  proper 
records. — Pearce  v.  Greek  Boys'  Min.  Co.,  48  Wash.  38, 
92  P.  773. 

Wyoming.  A  copy  of  an  ordinance  certified  by  the  clerk 
under  the  seal  of  the  town  is  admissible  in  evidence  with- 
out further  proof.— Meldrum  v.  State,  23  Wyo.  12,  146  P. 
596. 

Imperfections   In   Acknowledgment  or   Record. 

Arkansas.  Certified  copy  of  the  record  of  a  bill  of  sale 
in  Louisiana  is  inadmissible  unless  proved  to  have  been 
properly  acknowledged  and  recorded. — Dixon  v.  Thatcher, 
14  Ark.  141. 

Certified  copy  of  the  record  of  a  deed  purporting  to  be 
under  seal  is  admissible,  though  a  copy  of  the  seal  was  not 
in  the  record.— Sibly  v.  England,  90  Ark.  424,  119  S.  W.  820. 

California.  Under  a  statute  making  certified  copies  of 
properly  acknowledged  instruments  competent  evidence,  an 
unacknowledged  instrument  is  inadmissible.— Fresno  Canal 
&  Irr.  Co.  v.  Dunbar,  80  Cal.  530,  22  P.  275. 

Colorado.  A  certified  copy  of  the  record  of  a  bond  and 
lease  not  acknowledged  is  inadmissible  in  evidence  with- 
out proof  of  execution. — Milwaukee  G.  M.  Co.  v.  Tomkins- 
Christy   Hardware  Co.,  26  Colo.  App.   155,   141  P.  527. 

Texas.  Where  a  deed  has  been  recorded  for  over  ten 
years  without  claim  adverse  or  inconsistent  to  the  one 
evidenced  by  the  instrument  having  been  asserted,  a  cer- 
tified copy  of  the  document  is  admissible  over  the  objec- 
tion that  it  appears  to  have  been  acknowledged  before  an 
unauthorized  person.— Sullivan  v.  Fant,  (Tex.  Civ.  App). 
160  S.  W.  612. 


616  DOCUMENTS 

Article  80. 
[judicial  records  and  public  documents  of  other  states.] 

[The  records  and  judicial  proceedings  of  the 
courts  of  any  state  or  territory  or  of  any  country 
subject  to  the  jurisdiction  of  the  United  States, 
shall  be  proved  or  admitted  in  any  other  court 
within  the  United  States,  by  the  attestation  of  the 
clerk,  and  the  seal  of  the  court  annexed,  if  there 
be  a  seal,  together  with  a  certificate  of  the  judge, 
chief  justice  or  presiding  magistrate,  that  the 
said  attestation  is  in  due  form.  And  the  said  rec- 
ords and  judicial  proceedings,  so  authenticated, 
shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States,  as  they 
have  by  law  or  usage  in  the  courts  of  the  state 
from  which  they  are  taken,  (a) 

All  records  and  exemplifications  of  books, 
which  may  be  kept  in  any  public  office  of  any 
state  or  territory,  or  of  any  country  subject  to 
the  jurisdiction  of  the  United  States,  not  apper- 
taining to  a  court,  shall  be  proved  or  admitted  in 
any  court  or  office  in  any  other  state  or  territory, 
or  in  any  such  country,  by  the  attestation  of  the 
keeper  of  the  said  records  or  books,  and  the  seal 
of  his  office  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  presiding  justice  of  the 
court  of  the  county,  parish  or  district  in  which 
such  office  may  be  kept,  or  of  the  governor  or  sec- 
retary of  state,  the  chancellor  or  keeper  of  the 

a  [Rev.  Stat.  U.  S.  §  905;  U.  S.  Comp.  St.  Ann.  1916,  §  1519, 
with  numerous  annotations.] 


DOCUMENTS  617 

great  seal,  of  the  state,  or  territory,  or  country, 
that  the  said  attestation  is  in  due  form,  and  by 
the  proper  officers.  If  the  said  certificate  is  given 
by  the  presiding  justice  of  a  court,  it  shall  be 
further  authenticated  by  the  clerk  or  prothono- 
tary  of  the  said  court,  who  shall  certify,  under  his 
hand  and  seal  of  his  office,  that  the  said  presiding 
justice  is  duly  commissioned  and  qualified;  or,  if 
given  by  such  governor,  secretary,  chancellor,  or 
keeper  of  the  great  seal,  it  shall  be  under  the  great 
seal  of  the  state,  territory,  or  country  aforesaid 
in  which  it  is  made.  And  the  said  records  and 
exemplifications,  so  authenticated,  shall  have 
such  faith  and  credit  given  them  in  every  court 
and  office  within  the  United  States  as  they  have  by 
law  or  usage  in  the  courts  or  offices  of  the  state, 
territory,  or  country,  as  aforesaid,  from  which 
they  are  taken.]    (b) 

JUDICIAL    RECORDS    OF    OTHER    STATES. 

California.  C.  C.  P.,  §  1906,  applies  to  the  certification  of 
a  copy  of  a  judicial  record  of  a  foreign  country. — Wicker- 
sham  v.  Johnson,  104  Cal.  407,  38  P.  89. 

Colorado.  A  certificate  of  the  judge  alone  to  the  trans- 
cript of  proceedings  in  a  court  of  another  state  is  not  suf- 
ficiently authenticated  to  be  admissible  in  evidence  in 
Colorado.— Henry  Inv.  Co.  v.  Semonian,  45  Colo.  260,  100 
P.  425. 


b  [Rev.  Satt.  U.  S.  §  906;  U.  S.  Comp.  St.  Ann.  1916,  §  1520. 
Tli is  method  of  proving  judicial  records  and  documents  does 
riot  prevent  their  proof  by  any  other  means  which  may  be 
provided  by  statutes  in  the  respective  states.  See  3  Wigr- 
more  Ev.,  §§  1652,  1680,  1681.] 


618  DOCUMENTS 

Kansas.  Judicial  proceedings  had  in  a  sister  state  are 
provable  by  certified  copies. — Friend  v.  Miller,  52  Kan.  139, 
34  P.  397;   Metzger  v.  Burnett,  5  Kan.  App.  374,  48  P.  599. 

A  properly  certified  copy  of  the  record  of  judicial  pro- 
ceedings had  in  another  state  is  admissible  to  show  that 
such  proceedings  have  been  had. — Friend  v.  Miller,  52 
Kan.  139,  34  P.  397;  Metzger  v.  Burnett,  5  Kan.  App.  374, 
48  P.  599. 

The  record  of  a  judgment  rendered  by  a  court  of  an- 
other state  is  not  admissible  in  evidence  for  the  purpose 
of  proving  the  determination  of  a  fact  involved  in  the  trial 
of  a  case  in  a  district  court  of  this  state,  when  such  record 
shows  that  such  judgment  was  rendered  without  jurisdic- 
tion of  one  of  the  necessary  parties. — Looney  v.  Reeves, 
5  Kan.  App.  279,  48  P.  606. 

A  copy  of  a  judicial  record  of  another  state  must  be 
authenticated  as  required  by  the  federal  statutes  or  ac- 
cording to  the  provisions  of  §  371,  C.  C.  P.  Certification 
according  to  the  provisions  of  §  372  is  not  sufficient. — 
Ayres  v.  Deering  &  Co.,  76  Kan.  149,  90  P.  794. 

The  record  of  a  judgment  rendered  by  a  justice  of  the 
peace  in  another  state  must  be  certified  according  to  the 
laws  of  Kansas  to  make  it  admissible  in  evidence  in  that 
state. — Missouri,  K.  &  T.  Ry.  Co.  v.  Hindman,  83  Kan.  35, 
110  P.  102. 

Montana.  Whether  a  record  is  or  is  not  entitled  to  full 
faith  and  credit  is  a  question  for  the  trial  judge. — Adams 
v.  Stenehjim,  50  Mont.  232,  146  P.  469. 
Nebraska.  Judicial  records  of  another  state  proved  in 
the  manner  regulated  by  statute,  are  admissible  without 
further  proof  that  the  court  is  a  court  of  record. — Brown 
v.  Collins,  2  Neb.  (Unof.),  149,  96  N.  W.  173. 

North  Dakota.  A  judgment  of  a  justice  of  the  peace  of  a 
sister  state  cannot  be  proved  by  an  authenticated  copy  of 
the  judgment,  and  when  a  transcript  of  such  judgment  has 
been  filed  in  the  office  of  the  clerk  of  the  district  court 
in  the  county  where  rendered,  a  certified  copy  of  the  rec- 
ords of  such  court  is  inadmissible  to  prove  the  judgment. 
— Strecker  v.  Railson,  16  N.  D.  68,  111  N.  W.  612. 


DOCUMENTS  619 

Neither  the  act  of  Congress  (Rev.  St.,  §  905;  U.  S. 
Comp.  St.,  1901,  p.  677),  nor  Rev.  Code  N.  D.,  1905,  §  7292, 
relating  to  the  authentication  of  copies  of  judicial  records 
of  other  states,  applies  to  the  records  of  courts  of  limited 
jurisdiction.— Strecker  v.  Railson,  16  N.  D.  68,  111  N.  W. 
612. 

Oklahoma.  A  transcript  of  a  judgment  rendered  in  a  court 
of  record  in  another  state  is  admissible  in  evidence  though 
it  does  not  show  that  it  was  signed  by  the  presiding  judge, 
if  otherwise  duly  authenticated. — Dean  v.  Stone,  2  Okl.  13, 
35  P.  578. 

Oregon.  Unless  it  affirmatively  appears  that  the  court  of 
another  state  is  composed  of  more  than  one  judge,  a  trans- 
cript of  a  judgment  of  such  court  is  admissible  in  evidence 
though  it  does  not  show  that  the  judge  certifying  to  the 
same  was  the  sole,  chief  or  presiding  judge. — Keyes  v. 
Mooney,  13  Or.  179,  9  P.  400. 

Texas.  Records  and  judicial  proceedings  of  the  courts  of 
a  sister  state  may  be  proved  or  admitted  in  evidence  in 
any  other  court  when  properly  authenticated. — Tourtelot 
v.  Booker,   (Tex.  Civ.  App.),  160  S.  W.  293. 

When  the  laws  under  which  a  judgment  is  rendered  in 
a  sister  state  are  proved  and  the  judgment  is  in  conform- 
ity therewith,  it  is  sufficient  to  establish  the  judgment. — 
Tourtelot  v.  Booker,  (Tex.  Civ.  App.),  160  S.  W.  293. 

Washington.  In  certifying  the  record  of  a  judgment  of 
another  state  it  is  not  necessary  that  the  clerk  should  cer- 
tify that  he  is  the  custodian  of  the  record.— Carpenter  v. 
Ritchie,  2  Wash.  512,  28  P.  380. 

An  objection  to  the  introduction  in  evidence  of  a  cer- 
tified copy  of  the  record  of  a  judgment  rendered  in  another 
state,  that  the  judge  did  not  certify  that  the  attestation 
was  in  due  form,  will  not  be  sustained. — Carpenter  v. 
Ritchie,  2  Wash.  512,  28  P.  380. 

A  certified  copy  of  the  record  of  a  judgment  of  another 
state  is  sufficiently  authenticated  if  the  seal  of  the  court 
is  attached  to  the  clerk's  certificate,  it  need  not  be  attached 
to  the  record  itself,  nor  need  it  show  that  the  judgment 
entry  in  the  journal  was  signed  by  the  judge;   and  it  is 


620  DOCUMENTS 

not  necessary  that  the  clerk  should  certify  that  he  is  the 
custodian  of  the  record. — Carpenter  v.  Ritchie,  2  Wash. 
512,  28  P.  380. 

The  sufficiency  of  the  authentication  of  a  foreign  judg- 
ment record  is  a  question  for  the  trial  judge. — Clark  v. 
Eltinge,  38  Wash.   376,   80  P.  556. 

MISCELLANEOUS    RECORDS    OF    OTHER   STATES. 

Kansas.  A  plat  on  file  or  recorded  in  another  state  cannot 
be  proved  by  a  certified  copy  alone,  but  must  be  identified 
by  the  proper  custodian  and  the  copy  proved  by  his  oath. 
— Munkres  v.   McCaskill,   64  Kan.   516,   68  P.   42. 

North  Dakota.  Before  certified  copies  of  a  foreign  non- 
judicial official  records  are  admissible,  proof  of  the  foreign 
law  making  them  official  records  and  imposing  the  duty  of 
their  keeping  must  be  made.  Such  proof  is  made  in  the 
same  manner  as  the  proof  of  any  other  fact  in  issue. — 
Peterson's  Estate,  In  re,  22  N.  D.  480,  134  N.  W.  751. 

Oregon.  Under  the  Oregon  statutes  the  certification  of 
a  copy  of  a  foreign  record  is  to  be  made  in  accordance  with 
the  law  of  the  place  of  the  record. — State  v.  McDonald, 
55  Or.   419,   104   P.   967. 

A  foreign  document  not  certified  according  to  the  pro- 
visions of  the  statute  (L.  O.  L.,  §  766)  is  not  admissible  in 
evidence.— State  v.  Hassing,  60  Or.  81,  118  P.  195. 

Texas.  Where  an  original  writing  is  an  archive  of  a  for- 
eign government  and  there  are  no  means  of  testing  its 
genuineness,  or  the  verity  of  the  proffered  testimonio  by 
any  record  or  other  evidence  within  the  jurisdiction,  some 
extrinsic  evidence  of  the  execution  or  genuineness  of  the 
instrument  is  required  before  it  can  be  introduced  in  evi- 
dence.— State  v.  Cardinas,  47  Tex.  291;  Sullivan  v.  Fant, 
(Tex.  Civ.  App.),  160  S.  W.  612. 

Certified  copies  of  the  records  of  another  state  are  not 
admissible  in  evidence,  where  there  is  no  proof  given  as 
to  the  effect  of  such  records  in  the  state  where  they  are 
made.— Newsom  v.  Langford,  (Tex.  Civ.  App.),  174  S.  W. 
1036. 


DOCUMENTS  621 

Utah.  Record  of  the  court  of  another  state,  showing  ap- 
pointment of  a  receiver,  held  duly  authenticated. — Steinke 
v.  Graves,  16  Utah  293,  52  P.  386. 

Washington.  Public  records  of  other  states,  other  than 
courts,  must  be  certified  according  to  the  federal  statutes 
to  be  admissible  as  evidence  in  the  courts  of  the  state  of 
Washington.— James  v.  James,  35  Wash.   650,  77   P.  1080. 

Article  81. 
[officially  printed  copies.] 

[The  authorized  printed  copies  of  the  Revised 
Statutes  of  the  United  States,  edition  of   1878, 
shall  be  legal  evidence  of  the  laws  therein    con- 
tained, in  all  the  courts  of  the  United  States,  and 
of  the  several  States  and  Territories,  but  shall 
not  preclude  reference  to  nor  control,  in  case  of 
any  discrepancy,  the  effect  of  any  original  act  as 
passed  by  Congress  since  the  first  day  of  Decem- 
ber, 1873.     Also  the  authorized  bound  copies  of 
the  acts  of  each  Congress  shall  be  legal  evidence 
of  the  laws  therein  contained,  in  all  courts  of  the 
United  States  and    of   the   several    states  there- 
in.(a) 

The  law  of  other  jurisdictions  is,  in  most,  if 
not  all,  of  the  states,  admitted  in  evidence  under 
statutes  to  the  usual  effect  that  printed  copies  of 
statutes,  codes,  or  other  written  law  of  other 
states  or  territories  or  foreign  governments,  pur- 
porting or  proven  to  have  been  published  by  the 
authority  thereof,  or  proved  to  be  commonly  ad- 

(a)    [Rev.   St.   U.   S.    1878,   pp.   1090-1092,   ch.    333,   sees.    2,    8; 
U.  S.  Comp.   St.  Ann.   1916,   j§   1523,   1525.] 


622  DOCUMENTS 

mitted  in  the  tribunals  of  such  jurisdiction  shall 
be  admissible  to  prove  such  law.  (b) 

Legislative  enactments  of  the  several  states 
provide  for  the  admission  in  evidence  of  their 
own  written  laws  contained  in  officially  printed 
volumes,  as  well  as  of  municipal  ordinances  and 
other  documents.]  (c) 


OFFICIALLY  PRINTED  COPIES. 

Idaho.  Foreign  documents  published  by  authority  of  other 
states  or  governments  and  shown  to  be  commonly  admitted 
in  evidence  in  the  tribunals  of  such  states  or  govern- 
ments, are  admissible  in  evidence  in  Idaho  under  §  5969, 
Rev.  Code.— Moore  v.  Pooley,  17  Ida.  57,  104  P.  898. 

Books  printed  or  published  under  the  authority  of  a 
state  or  terrtitory  or  foreign  country,  purporting  to  con- 
tain the  statutes  or  other  written  law  of  such  state,  etc., 
or  proved  to  be  commonly  admitted  in  the  tribunals  of  such 
state,  etc.,  as  evidence  of  the  written  law  thereof,  are 
admissible  in  Idaho  as  evidence  of  such  laws. — Rev.  Code, 
§  5969;    Moore  v.  Pooley,   17  Ida.  57,  104  P.  898. 

Oklahoma.  Printed  copies  of  the  final  rolls  of  Citizens 
and  Freedmen  of  the  Five  Civilized  Tribes  prepared  by 
the  Commissioner  and  approved  by  the  Secretary  of  the 
Interior  under  the  authority  of  Congress  are  admissible  in 
evidence.— Lawless  v.   Raddis,  36   Okl.   616,   129   P.   711. 

Oregon.  Books  printed  and  published  under  the  author- 
ity of  a  sister  state,  purporting  to  contain  the  statutes  of 
such  state  are  admissible  as  proof  of  such  laws. — State  v. 
Savage,  36  Or.  191,  60  P.  610;  State  v.  McDonald,  55  Or. 
519,  104  P.  967. 


(b)  3   Wigmore  Ev.,    §    1684.] 

(c)  [Id.] 


DOCUMENTS  623 

Article  82. 
[legislative  acts  of  states  and  territories.] 

[The  acts  of  the  legislature  of  any  State  or 
Territory  or  of  any  country  subject  to  the  juris- 
diction of  the  United  States,  shall  be  authenti- 
cated by  having  the  seals  of  such  State  or  Terri- 
tory, or  country,  affixed  thereto,  but  this  provision 
does  not  preclude  any  other  method  of  proof  al- 
lowed by  state  law,  or  admitted  by  the  court, 
where  the  same  may  be  offered  in  evidence.]  (a) 

LEGISLATIVE  ACTS. 

Oregon.  Publications  purporting  to  contain  the  laws  of 
foreign  countries  or  sister  states,  published  by  authority 
of  such  countries  or  states  are  admissible  in  evidence  to 
establish  such  laws.— State  v.  Savage.  36  Or.  191,  60  P. 
610;   State  v.  McDonald,  55  Or.  519,  104  P.  967. 

Article  83. 
[state   papers,    proclamations,    legislative   JOURNALS,   ami 

PUHMC   DOCUMEN  I  S.  | 

[The  officially  printed  copies  of  proclamations, 
State  Papers,  legislative  journals  and  miscellan- 
eous public  documents  are  admissible  in  evi- 
dence, (a) 

By  the  U.  S.  Revised  Statutes  it  is  provided 
that  extracts  from  the  Journals  of  the  Senate,  or 

(a)  [Rev.  St.  U.  S.  1878,  §  905;  U.  S.  Comp.  St.  Ann.  1916.  § 
1519,  with  numerous  annotations;  3  Wigmore  Ev.,  §§  1680, 
1681.] 

(a)    [3   Wigmore  Ev.,   J    1684.] 


624  DOCUMENTS 

of  the  House  of  Representatives,  and  of  the  Exe- 
ecutive  Journal  of  the  Senate  when  the  injunction 
of  secrecy  is  removed,  certified  by  the  Secretary 
of  the  Senate  or  by  the  clerk  of  the  House  of  Rep- 
resentatives, shall  be  admitted  as  evidence  in  the 
courts  of  the  United  States,  and  shall  have  the 
same  force  and  effect  as  the  originals  would  have 
if  produced  and  authenticated  in  court.]  (b) 

PROOF  OF  OFFICIAL  DOCUMENTS. 

"In  general,  then,  where  an  official  printer  is  appointed,  his 
printed  copies  of  official  documents  are  admissible.  It  is  not 
necessary  that  the  printer  should  be  an  officer  in  the  strictest 
sense,  nor  that  he  should  be  exclusively  concerned  with  offi- 
cial work;  it  is  enough  that  he  is  appointed  by  the  executive 
to  print  official  documents.  As  for  authentication  of  his 
copies,  it  is  enough  that  the  copy  offered  purports  to  be  printed 
by  authority  of  the  government;  its  genuineness  is  assumed 
without  further  evidence.  Such  seems  to  be  the  general  prin- 
ciples of  the  common   law." — 3   Wigmore  Ev.,    §    1684. 

Article  84. 
[foreign  laws,  acts  of  state,  and  judgments.] 

[Foreign  laws,  acts  of  state  and  judicial  records 
may  be  authenticated  by  an  exemplification  of  a 
copy  under  the  great  seal  of  the  state,  or  by  a 
copy  proved  to  be  a  true  copy  by  a  witness  who 
has  examined  and  compared  it  with  the  original, 
or  by  a  certificate  of  an  officer  properly  authorized 
by  law  to  give  the  copy,  which  certificate  must 
itself  also  be  authenticated,  (a) 


(b)    [Rev.   St.   U.   S.   1878,    §   895;    U.   S.   Comp  St.   Ann.    1916, 
1508.] 
(a)    [2  Wigmore  Ev.,  §  1271.] 


DOCUMENTS  625 

In  some  states,  by  statute,  foreign  written  law 
may  be  proved  orally,  usually  with  provision  that 
the  court  may  in  its  discretion  require  that  testi- 
mony as  to  such  law  from  the  expert  witness  be 
accompanied  by  a  copy  of  the  statute  in  ques- 
tion, (b) 

The  unwritten  or  common  law  of  any  state  or 
territory  is  provable  by  parol  evidence.]  (c) 

FOREIGN  LAWS. 
North  Dakota.  Foreign  unwritten  or  common  law  may 
be  established  by  oral  testimony;  but  where  such  oral  tes- 
timony does  not  establish  the  foreign  law  to  exist  as  un- 
written or  common  law,  and  negative  the  existence  of  a 
written  statute,  the  proof  of  the  foreign  law  is  insuffi- 
cient to  admit  certified  copies  of  foreign  official,  but  non- 
judicial, records. — Peterson's  Estate,  In  re,  22  N.  D.  480, 
134  N.  W.  751. 

A  foreign  law,  relied  upon  as  a  basis  of  testimony  as 
to  registration  of  births,  marriages  and  deaths,  must  be 
proven  as  a  fact,  and  when  the  foreign  law  exists  as  a 
statute  or  in  writing,  oral  testimony  thereof  is  inadmis- 
sible under  both  the  common  law  and  the  statute  of  North 
Dakota  (section  7291). — Peterson's  Estate,  In  re,  22  N. 
D.  480,  134  N.  W.  751. 


(b)  [1  Wigmore  Ev.,   §   564;   2  Id.,   §   1271.] 

(c)  [2   Wigmore    Ev.,    §    1271] 


626  DOCUMENTS 

CHAPTER  XL 

PRESUMPTIONS  AS  TO  DOCUMENTS, 

Article  85. 
presumption  as  to  date  of  a  document. 

When  any  document  bearing  a  date  has  been 
proved,  it  is  presumed  to  have  been  made  on  the 
day  on  which  it  bears  date,  and  if  more  documents 
than  one  bear  date  on  the  same  day,  they  are  pre- 
sumed to  have  been  executed  in  the  order  neces- 
sary to  effect  the  object  for  which  they  were  exe- 
cuted, but  independent  proof  of  the  correctness 
of  the  date  will  be  required  if  the  circumstances 
are  such  that  collusion  as  to  the  date  might  be 
practiced,  and  would,  if  practiced,  injure  any  per- 
son, or  defeat  the  objects  of  any  law.  (a) 

Illustrations. 

(a)  An  instrument  admitting  a  debt,  and  dated  before  the 
act  of  bankruptcy,  is  produced  by  a  bankrupt's  assignees,  to 
prove  the  petitioning  creditor's  debt.  Further  evidence  of 
the  date  of  the  transaction  is  required  in  order  to  guard 
against  collusion  between  the  assignees  and  the  bankrupt, 
to  the  prejudice  of  creditors  whose  claims  date  from  the 
interval  between  the  act  of  bankruptcy  and  the  adjudication. l 

(b)  In  a  petition  for  damages  on  the  ground  of  adultery 
letters  are  produced  between  the  husband  and  wife,  dated 
before  the  alleged  adultery,  and  showing  that  they  were  then 
on  affectionate  terms.  Further  evidence  of  the  date  is  re- 
quired to  prevent  collusion,  to  the  prejudice  of  the  person 
petitioned  against. 2 

(a)  1  Ph.  Ev.  482-483;  T.  E.  s.  137;  Best,  s.  403;  [4  Wig- 
more  Ev.,   §   2520;   Mott  v.   Richtmyer,    57   N.   T.   49.] 


lAnderson   v.    Weston,    6    Bing.    N.    C.    302;    Sinclair  v.    Bag- 
gallay,  M.  &  W.  318. 

sHoulston  v.   Smith,  2  C.  &  P.  24. 


DOCUMENTS  627 

DATE   AND    PLACE    OF    EXECUTION. 

A  deed  is  presumed  to  have  been  executed  on  the  day 
of  its  date.— Rohr  v.  Alexander,  57  Kan.  381,  46  P.  699; 
Leonard  v.  Fleming,  13  N.  D.  629,  102  N.  W.  308;  Kauff- 
man  v.  Baillie,  46  Wash.  248,  89  P.  548. 
Illinois.  The  law  presumes  that  a  note  was  executed  on 
the  day  it  bears  date,  and  such  presumption  prevails  until 
overcome  by  proof. — Knisely  v.  Sampson,  100  111.  573. 
Massachusetts.  The  date  of  a  deed  is  prima  facie  evi- 
dence of  the  date  of  its  execution. — Smith  v.  Porter,  10 
Gray  66.  <% 

New  York.  The  general  presumption  is  that  an  instru- 
ment was  made  at  its  date. — Livingston  v.  Arnouz,  56  N. 
Y.  507. 

The  presumption  is  that  an  affidavit  was  signed  on 
the  date  it  purports  to  have  been  sworn  to. — People  v 
Warden  of  City  Prison,  135  N.  Y.  S.  841. 
Oregon.  In  the  absence  of  evidence  to  the  contrary  a 
promissory  note  will  be  presumed  to  have  been  executed 
where  pretended  to  be  dated. — Casner  v.  Hoskins,  64  Or. 
254,   130   P.   55. 

Wisconsin.  It  is  presumed  that  a  deed  duly  executed  was 
executed  on  the  day  it  bears  date. — McFarlane  v.  Louden, 
99  Wis.   620,  75  N.  W.   394. 

DATE   OF   DELIVERY. 

California.  A  deed  will  be  presumed  to  have  been  deliv- 
ered on  the  day  of  its  date. — Eaton  v.  Wilkins,  163  Cal. 
742,  127  P.  71. 

Indiana.  When  a  deed  is  found  in  the  hands  of  the  gran- 
tee, with  regular  evidence  of  its  execution,  it  is  presumed 
to  be  delivered  at  the  time  it  bears  date. — Scobey  v. 
Walker.  114  Ind.  254,  15  N.  E.  674. 

New  York.  A  deed  is  presumed  to  have  been  delivered  at 
the  time  of  its  date— People  v.  Snyder,  41  N.  Y.  397. 

Texas.  A  deed  is  presumed  to  have  been  delivered  at  the 
time  of  its  date. — Wadsworth  v.  Vinyard,  (Tex.  Civ.  App.), 
131  S.  W.  1171. 


628  DOCUMENTS 

Article  86. 
presumption  as  to  stamp  of  a  document. 

When  any  document  is  not  produced  after  due 
notice  to  produce,  and  after  being  called  for,  it  is 
presumed  to  have  been  duly  stamped,  (a)  unless 
it  be  shown  to  have  remained  unstamped  for  some 
time  after  its  execution,  (b) 

PRESUMPTIONS  AS  TO  STAMPS. 
Pennsylvania.  The  prima  facie  presumption  arising  from 
the  execution  of  the  note,  the  full  amount  of  stamps  affixed, 
their  actual  cancellation,  and  the  initials  of  the  defendant 
on  a  part  of  the  stamps,  would  prevent  the  court  from 
taking  from  the  jury  the  fact  of  an  authorized  cancellation 
of  the  smaller  stamps. — Rees  v.  Jackson,  64  Pa.  St.  486, 
3  Am.  Rep.   608. 

Texas.  A  federal  statute  providing  that  no  instrument  not 
having  a  required  stamp  shall  be  admitted  as  evidence 
does  not  apply  to  state  courts. — Thomas  v.  State,  40  Tex. 
Cr.  R.  562,  51  S.  W.  242. 

Article  87. 
presumption  as  to  sealing  and  delivery  of  deeds. 

When  any  document  purporting  to  be  and 
stamped  as  a  deed,  appears  or  is  proved  to  be  or 
to  have  been  signed  and  duly  attested,  it  is  pre- 
sumed to  have  been  sealed  and  delivered,  although 
no  impression  of  a  seal  appears  thereon,  (a) 

(a)  Closmadeuc  v.  Carrel,  18  C.  B.  44.  In  this  case  the 
growth  of  the  rule  is  traced,  and  other  cases  are  referred  to, 
in   the  judgment  of  Cresswell,   J. 

(b)  Marine  Investment  Company  v.  Haviside,  L..  R.  5  E. 
&  I.  App.   624. 

(a)  Hall  v.  Bainbridge,  12  Q.  B.  699-710;  Re  Sandilands, 
L.   R.   6  C.  P.   411. 


DOCUMENTS  629 

PRESUMPTION  AS  TO  SEAL. 
Nevada.  The  recording  of  the  seal  to  a  deed  is  not  abso- 
lutely essential.  If  the  original  instrument  cannot  be  pro- 
duced, and  the  record  thereof  is  offered  in  evidence,  the 
existence  of  the  seal  will  be  presumed  from  the  statement 
in  the  deed  that  the  grantor  did  set  his  hand  and  affix  his 
seal  thereto,  and  from  the  attestation  clause  that  it  was 
signed,  sealed,  and  delivered  in  the  presence  of  witnesses. 
— Flowery  Mining  Co.  v.  North  Bonanza  M.  Co.,  16  Nev. 
302. 

PRESUMPTIONS  AS  TO  DELIVERY. 
Arkansas.  The  registration  of  a  deed  raises  a  presump- 
tion of  delivery  to  and  acceptance  by  the  grantee. — Gra- 
ham v.  Suddeth,  97  Ark.  283,  133  S.  W.  1033. 
California.  Evidence  is  admissible  that,  although  plaintiff 
has  possession  of  a  deed  which  was  handed  him  by  the 
grantor,  there  was  in  reality  no  delivery  intended. — Black 
v.  Sharkey,  104  Cal.  279,  37  P.  939. 

Kansas.  An  instrument  shown  to  have  been  long  in  the 
possession  of  the  party  producing  it  will  be  presumed  to 
have  been  executed  and  delivered  on  the  date  it  bears. — 
Rohr  v.  Alexander,  57  Kan.  381,  46  P.  699. 

Where  a  deed  properly  executed  is  found  among  the 
papers  of  a  deceased  grantee  proper  delivery  will  be  pre- 
sumed.—Fish  v.  Poorman,  85  Kan.  237,  116  P.  898. 

It  will  be  presumed  that  a  deed  was  not  delivered  prior 
to  the  acknowledgment.— Kitchener  v.  Jehlik,  85  Kan.  684, 
118  P.  1058. 

North  Dakota.  An  instrument  shown  to  have  been  long 
in  the  possession  of  the  party  producing  it  will  be  pre- 
sumed to  have  been  executed  and  delivered  on  the  date 
it  bears.— Leonard  v.  Fleming,  13  N.  D.  629,  102  N.  W.  308. 
Oregon.  The  delivery  of  a  deed  will  be  presumed  from 
circumstances.— Series  v.  Series,  35  Or.  289,  57  P.  634. 
South  Dakota.  Where  a  deed  is  found  in  the  possession 
of  the  grantor  it  will  be  presumed  that  it  was  never  deliv- 
ered, and  the  same  presumption  arises  where  the  Instru- 
ment is  found  in  the  possession  of  the  scrivener,  he  being 
considered  as  much  the  agent  of  one  party  as  the  other. 
— Cassidy  v.  Holland,  27  S.  D.  287,  130  N.  W.  771. 


630  DOCUMENTS 

Texas.  Possession  of  a  deed  by  the  grantee  raises  a  pre- 
sumption of  due  delivery  thereof  to  him. — Tuttle  v.  Tur- 
ner, 28  Tex.  759;  Wadsworth  v.  Vinyard,  (Tex.  Civ.  App.), 
131  S.  W.  1171. 

Washington.  An  instrument  shown  to  have  been  long  in 
the  possession  of  a  party  producing  it  at  the  trial  will  be 
presumed  to  have  been  executed  and  delivered  to  him  on 
the  date  it  bears.— Kauffman  v.  Baillie,  46  Wash.  248,  89 
P.  548. 

When  a  deed  properly  executed  and  acknowledged 
passes  into  the  custody  and  control  of  the  grantee  and  is 
recorded,  a  strong  presumption  of  delivery  is  raised. — 
Anderson  v.  Woolley,  61  Wash.  236,  112  P.  271;  Jackson 
v.  Lamar,  58  Wash.  383,  108  P.  946. 

PRESUMPTION    AS   TO    EXECUTION. 

Arkansas.  When  a  letter  is  received  in  the  course  of  mail, 
and  purports  to  be  in  answer  to  a  letter  that  was  pre- 
viously duly  addressed  and  mailed,  the  presumption  arises 
that  such  letter  is  the  genuine  instrument  of  the  purported 
writer  and  is  sufficiently  authenticated  to  go  to  the  jury." 
— Barham  v.  Bank  of  Delight,  94  Ark.  158,  126  S.  W.  394. 

Article  8S. 

PRESUMPTIONS  AS  TO  DOCUMENTS  THIRTY  YEARS  OLD. 

Where  any  document  purporting  or  proved  to 
be  thirty  years  old  is  produced  from  any  custody 
which  the  judge  in  the  particular  case  considers 
proper,  it  is  presumed  that  the  signature  and 
every  other  part  of  such  document  which  purports 
to  be  in  the  handwriting  of  any  particular  person 
is  in  that  person's  handwriting,  and,  in  the  case 
of  a  document  executed  or  attested,  that  it  was 
duly  executed  and  attested  by  the  persons  by 
whom  it  purports  to  be  executed  and  attested ;  and 
the  attestation  or  execution  need  not  be  proved, 


DOCUMENTS  631 

even  if  the  attesting  witness  is  alive  and  in  court. 
Documents  are  said  to  be  in  proper  custody  if 
they  are  in  the  place  in  which,  and  under  the  care 
of  the  person  with  whom,  they  would  naturally 
be;  but  no  custody  is  improper  if  it  is  proved  to 
have  had  a  legitimate  origin,  or  if  the  circum- 
stances of  the  particular  case  are  such  as  to  ren- 
der such  an  origin  probable,  (a) 

ANCIENT   DEEDS. 

Presumption  As  To  Execution. 
An  instrument  shown  to  have  been  long  in  the  posses- 
sion of  the  party  producing  it  will  be  presumed  to  have 
been  executed  on  the  date  it  bears. — Rohr  v.  Alexander, 
57  Kan.  381,  46  P.  699;  Leonard  v.  Fleming,  13  N.  D.  629, 
102  N.  W.  308. 

Texas.  An  instrument  thirty  years  old  produced  from 
natural  or  proper  custody  will  be  presumed  to  have  been 
properly  executed. — Mackey  v.  Armstrong,  84  Tex.  159, 
19  S.  W.  463;  Flores  v.  Hovel.  (Tex.  Civ.  App.),  125  S.  W. 
606. 

Authority  To  Execute. 
Texas.  Whero  a  conveyance  would  be  evidence  as  an 
ancient  document  without  proof  of  execution,  the  power 
under  which  it  purports  to  have  been  executed  will  be 
presumed. — Watrous  v.  McGrew,  16  Tex.  513;  Veremendi 
v.  Hutchins.  48  Tex.  552;  Garner  v.  Lasker,  71  Tex.  431, 
9  S.  W.  332;  Hensel  v.  Kegans,  79  Tex.  347,  15  S.  W.  275! 

After  a  lapse  of  thirty  years  the  authority  of  a  person 
to  execute  a  deed  under  a  power  from  another,  or  in  a 
fiduciary  capacity,  will  be  presumed. — Tucker  v.  Murphy, 
66  Tex.  355,  1  S.  W.  76;  Williams  v.  Hardie,  (Tex.  Civ. 
App.),  21  S.  W.  267. 

(a)  2  Ph.  Ev,  245-248;  Starkle,  621-526;  T.  B.  s.  74  and  S3. 
593-601;  Best,  s.  220;  [3  Wigmore  Ev.,  §  2137  et  seq.];  Floyd 
v.   Tewksbury,    129    Mass.    362. 


632  DOCUMENTS 

A  deed  over  thirty  years  old  purporting  to  have  been 
executed  under  the  authority  of  a  power  of  attorney, 
raises  the  presumption  that  the  authority  existed  where 
such  deed  comes  from  proper  custody. — O'Donnell  v.  Johns 
&  Co..  76  Tex.  362,  13  S.  W.  376. 

The  authority  of  a  private  person  to  execute  a  deed 
under  a  power  will  be  presumed  after  thirty  years,  but 
where  the  authority  must  emanate  from  a  court  whose 
proceedings  are  required  by  law  to  be  a  matter  of  record, 
the  presumption  will  not  arise. — Tucker  v.  Murphy,  66 
Tex.  359,  1  S.  W.  76;  French  v.  McGinnis,  10  Tex.  Civ. 
App.  7,  29  S.  W.  656;  Spencer  v.  Levy,  (Tex.  Civ.  App.), 
173   S.  W.   550. 

Where  a  deed  purports  to  have  been  executed  by  virtue 
of  a  power  of  attorney  forty  years  old,  but  under  which 
no  claim  appears  to  have  been  asserted  for  twenty-five 
years,  it  will  be  presumed  that  the  power  to  execute  it 
did  not  exist,  or  that  for  some  other  reason  no  title  passed. 
—Baldwin  v.  Goldfrank,  88  Tex.  249,  31  S.  W.  1064;  Emory 
v.  Bailey,  (Tex.  Civ.  App.),  181  S.  W.  831. 

The  authority  to  execute  a  deed  may  be  presumed  where 
the  instrument  is  over  thirty  years  old  and  recites  that 
the  grantor  had  power  to  execute. — Skov  v.  Coffin,  (Tex. 
Civ.  App.),  137  S.  W.  450. 

One  who  signs  the  name  of  another  to  a  letter  which 
is  more  than  thirty  years  old  when  offered  in  evidence, 
will  be  presumed  to  have  had  authority  to  so  sign  the 
name  of  the  other. — Robertson  v.  Brothers,  (Tex.  Civ. 
App.),  139   S.  W.  657. 

Authority  to  execute  an  ancient  document  will  be  pre- 
sumed after  thirty  years,  although  the  instrument  is  not 
recorded  until  more  than  forty  years  subsequent  to  its  exe- 
cution.— Askew  v.  Cantwell,  (Tex.  Civ.  App.),  146  S.  W. 
720. 

Where  a  deed  over  thirty  years  old  is  put  in  evidence 
it  will  be  presumed  that  the  terms  of  the  authority  under 
which  it  purports  to  have  been  executed  were  complied 
with. — Wacaser  v.  Rockland  Savings  Bank,  (Tex.  Civ. 
App.),  172  S.  W.  737. 


DOCUMENTS  633 

Delivery. 
An  instrument  shown  to  have  been  long  in  the  posses- 
sion of  the  party  producing  it  will  be  presumed  to 
have  been  delivered  to  him  on  the  date  it  bears. — Rohr 
v.  Alexander,  57  Kan.  381,  46  P.  699;  Leonard  v.  Fleming, 
13  N.  D.  629,  102  N.  W.  308. 

Proper  Custody. 
Texas.     A  deed  thirty-three  years  old  will  be  presumed  to 
come  from  proper  custody,  though  not  recorded. — Ardom 
v.  Cobb,   (Tex.  Civ.  App.),  136  S.  W.  271. 

Possession. 
It  is  generally,  though  not  always,  held  in  the  jurisdic- 
tions of  the  United  States  that  possession  of  the  property 
in  question  is  not  necessary  as  an  absolute  requirement 
to  admit  an  ancient  deed  in  evidence  without  proof  of 
execution. — Peay  v.  Capps,  27  Ark.  60;  Stroud  v.  Spring- 
field, 28  Tex.  649;  Johnson  v.  Timmons,  50  Tex.  521; 
Holmes  v.  Coryell,  58  Tex.  680;   3  Wigmore  Ev.,  §  2141. 

Alterations. 
Texas.     Where  erasures  and  alterations  appear  on  an  an- 
cient instrument,  the  presumption  is  that  they  were  made 
contemporaneously  with  the  execution  of  the  instrument. 
—Rodriguez  v.  Hayes,  76  Tex.  225,  13  S.  W.  296. 

Presumption  As  To  Delivery. 
Oregon.     A  deed  which  has  been  recorded  over  thirty  years 
will  be  presumed  to  have  been  delivered. — Stephenson  v. 
Van  Blokland,  60  Or.  247,  118  P.  1026. 

Article  89. 
presl'ml'tio.n    ah  to  alterations. 

No  person  producing  any  document  which  upon 
its  face  appears  to  have  been  altered  in  a  mate- 
rial part  can  claim  under  it  the  enforcement  of 
any  right  created  by  it,  unless  the  alteration  was 


634  DOCUMENTS 

made  before  the  completion  of  the  document  or 
with  the  consent  of  the  party  to  be  charged  under 
it  or  his  representative  in  interest. 

This  rule  extends  to  cases  in  which  the  altera- 
tion was  made  by  a  stranger,  whilst  the  document 
was  in  the  custody  of  the  person  producing  it,  but 
without  his  knowledge  or  leave,  (a) 

Alterations  and  interlineations  appearing  on 
the  face  of  a  deed  are,  in  the  absence  of  all  evi- 
dence relating  to  them,  presumed  to  have  been 
made  before  the  deed  was  completed,  (b) 

Alterations  and  interlineations  appearing  on 
the  face  of  a  will  are,  in  the  absence  of  all  evidence 
relating  to  them,  presumed  to  have  been  made 
after  the  execution  of  the  will,  (c) 

There  is  no  presumption  as  to  the  time  when 
alterations  and  interlineations,  appearing  on  the 
face  of  writings  not  under  seal,  were  made  (d) 
except  that  it  is  presumed  that  they  were  so  made 
that  the  making  would  not  constitute  an  of- 
fense,  (e) 

An  alteration  is  said  to  be  material  when,  if  it 
had  been  made  with  the   consent    of    the    party 

(a)  Pigot's  Case,  11  Rep.  47;  Davidson  v.  Cooper,  11  M.  & 
W.  778;  13  M.  &  W.  343;  Aldous  v.  Cornwell,  L.  R.  3  Q.  B. 
573.  This  qualifies  one  of  the  resolutions  in  Pigot's  Case. 
The  judgment  reviews  a  great  number  of  authorities  on  the 
subject. 

(b)  Doe  v.  Catomore,  16  Q.  B.  745;  Wikoff's  Appeal,  15  Pa. 
St.    281;    Burnham    v.    Ayer,    35    N.    H.    351. 

(c)  Simmons  v.   Rudall,   1    Sim.   N.   S.    136. 

(d)  Knight  v.  Clements,  8  A.  &  E.  215;  [4  Wigmore  Ev., 
§  2525];  Simpson  v.  Stackhouse,  9  Barr.  186;  Clark  v.  Eck- 
stein,   22    Pa.    St.    507. 

(e)  R.  v.  Gordon,  Dearsley  &  P.  592;  (1  Greenl.  Ev.,  §  564, 
n.   3). 


DOCUMENTS  635 

charged,  it  would  have  affected  his  interest  or 
varied  his  obligations  in  any  way  whatever. 

An  alteration  which  in  no  way  affects  the  rights 
of  the  parties  or  the  legal  effect  of  the  instrument, 
is  immaterial,   (f) 

PRESUMPTION    AS    TO    ALTERATION. 

Leaving  unfilled  blanks  in  a  written  instrument  raises  a 
presumption  of  authority  to  fill  same  after  delivery. — 
Montgomery  v.  Dresher,  90  Neb.  632,  134  N.  W.  251;  Porter 
v.  Hardy,  10  N.  D.  551,  88  N.  W.  458. 

Arkansas.  That  a  writing  appears  on  its  face  to  have 
been  altered  raises  no  presumption  as  to  its  validity. — 
Klein  v.  German  Nat.  Bank,  69  Ark.  140,  61  S.  W.  572; 
Hatfield  School  Dist.  v.  Knight,  112  Ark.  83,  164  S.  W. 
1137. 

Nebraska.  A  note  on  its  face  showing  no  indication  of 
having  been  altered  will  be  presumed  to  be  unaltered. — 
Ohio  Nat.  Bank  v.  Gill  Bros.,  85  Neb.  718,  124  N.  W.  152. 

TIME    OF    ALTERATION. 
Colorado.     Any  alteration  of  a  written  instrument  is  pre- 
sumed to  have  been  made  before  or  at  the  time  of  execu- 
tion in  the  absence  of  evidence  upon  the  question. — Cheney 
v.  Barber,  1  Colo.  256. 

Idaho.  Under  section  C030,  Rev.  St.  Idaho,  a  party  offering 
in  evidence  a  promissory  note  showing  upon  its  face  that 
it  has  been  altered  is  required,  before  the  same  can  be 
received,  to  show  that  such  alteration  was  made  before  it 
came  to  his  hands. — Mulkey  v.  Long,  5  Ida.  213,  47  P.  949. 

Where  an  instrument  appears  to  have  been  alteerd  it 
will  be  presumed  that  the  alteration  was  made  before 
execution  and  delivery. -Exchange  State  Bank  v.  Taber, 
26  Idaho  72:!.   145  P.   IO'io. 

Nebraska.  When  an  altered  note  has  been  received  in 
evidence  either  with  or  without  testimony  explanatory  of 

< '">   Th  i"   '"■   the   resbll    of   many    ettsee   referred 

to  iii  T.  B.  ss.  n;  1  n-1620;  see  also  the  judgments  in  Davidson 
v.  Cooper  and  Aidous  v.  < '. unwell,  referred  to  above. 


636  DOCUMENTS 

such  change,  it  then  becomes  the  province  of  the  court, 
or  jury,  if  tried  by  jury,  to  decide  from  the  evidence,  as 
a  question  of  fact,  whether  such  alteration  was  made  be- 
fore or  after  the  execution  of  the  note;  and  it  is  error  for 
the  court  to  exclude  testimony  offered,  which  is  competent 
upon  such  question. — Courcamp  v.  Weber,  39  Neb.  533,  58 
N.  W.  187. 

Alterations  appearing  on  the  face  of  an  instrument  are 
presumed  to  have  been  made  before  the  same  was  signed 
and  delivered. — Dorsey  v.  Conrad,  49  Neb.  443,  68  N.  W. 
645;  Colby  v.  Foxworthy,  80  Neb.  239,  114  N.  W.  174;  Mus- 
ser  v.  Musser,  92  Neb.  387,  138  N.  W.  599. 

Washington.  There  is  a  presumption  that  an  instrument 
in  writing  was  in  the  same  condition  when  signed  that  it 
was  when  offered  in  evidence,  and  such  presumption  is  not 
changed  by  the  fact  that  the  instrument  showed  upon  its 
face  that  the  original  draft  thereof  had  been  changed. — 
Wolferman  v.  Bell,  6  Wash.  84,  32  P.  1017;  Yakima  Nat. 
Bank  v.  Knipe,  6  Wash.  348,  33  P.  834. 

"It  would  be  profitless  in  this  case  to  undertake  to  re- 
view the  authorities,  for  they  are  numerous  and  irrecon- 
cilable; some  courts  holding  that  an  alteration  of  the 
face  of  a  writing  raises  no  presumption  either  way,  but 
that  the  question  is  one  for  the  jury.  Other  courts  have 
held  that  the  alteration  raises  the  presumption  that  it  was 
made  before  delivery;  others  that  in  such  cases  the  pre- 
sumption attaches  that  the  change  was  made  after  deliv- 
ery, and  that  it  must  be  explained  before  it  is  received  in 
evidence;  still  others  that  it  raises  such  a  presumption 
only  when  it  is  suspicious." — Wolferman  v.  Bell,  6  Wash. 
84,  32  P.  1017. 

Presumption  that  interlineations  and  erasures  were  made 
before  execution  does  not  apply  to  the  erasure  of  the  name 
of  one  of  the  signers.— Blewett  v.  Bash,  22  Wash.  536,  61 
P.  770. 

In  the  absence  of  evidence  to  the  contrary,  erasures  ap- 
pearing on  the  face  of  a  deed  executed  by  a  public  officer 
will  be  presumed  to  have  been  made  before  execution. 
— Baylis  v.  Kerrick,  64  Wash.  410,  116  P.  1082. 


DOCUMENTARY  EVIDENCE  637 


CHAPTER  XII. 

OF  THE  EXCLUSION  OF  ORAL  BY  DOCUMENTARY 
EVIDENCE,  AND  OF  THE  MODIFICATION  AND  IN- 
TERPRETATION OF  DOCUMENTARY  BY  ORAL  EVI- 
DENCE. 

Article  90.* 

evidence  of  terms  ok  contracts,  grants,  and  other  dispo- 
sitions of  froperty  reduced  to  a  documentary  form. 

When  any  judgment  of  any  Court  or  any  other 
judicial  or  official  proceeding,  or  any  contract  or 
grant,  or  any  other  disposition  of  property,  has 
been  reduced  to  the  form  of  a  document  or  series 
of  documents,  no  evidence  may  be  given  of  such 
judgment  or  proceeding,  or  of  the  terms  of  such 
contract,  grant,  or  other  disposition  of  property, 
except  the  document  itself,  or  secondary  evidence 
of  its  contents  in  cases  in  which  secondary  evi- 
dence is  admissible  under  the  provisions  herein- 
before contained,  (a)  Nor  may  the  contents  of 
any  such  document  be  contradicted,  altered,  added 
to,  or  varied  by  oral  evidence,  (b) 

Provided  that  any  of  the  following  matters  may 
be  proved — 

(a)  Illustrations  (a)  and  (b);  (1  Greenl.  Ev.,  §§  275,  276, 
281). 

(b)  Gorman's  Case,  124  Mass.  190;  Fay  v.  Gray,  124  Mass. 
590;  but  see  McCormick  v.  Cheevers,   124   Mass.   262. 

•See  note  at  end  of  article. 


638  DOCUMENTARY  EVIDENCE 

(1)  Fraud,  intimidation,  illegality,  want  of  due 
execution,  want  of  capacity  in  any  contracting 
party,  the  fact  that  it  is  wrongly  dated,  (c)  want 
or  failure  of  consideration,  or  mistake  in  fact  or 
law,  (d)  or  any  other  matter  which,  if  proved, 
would  produce  any  effect  upon  the  validity  of  any 
document,  or  of  any  part  of  it,  or  which  would 
entitle  any  person  to  any  judgment,  decree,  or  or- 
der relating  thereto,   (e) 

(2)  The  existence  of  any  separate  oral  agree- 
ment as  to  any  matter  on  which  a  document  is 
silent,  and  which  is  not  inconsistent  with  its 
terms,  if  from  the  circumstances  of  the  case  the 
Court  infers  that  the  parties  did  not  intend  the 
document  to  be  a  complete  and  final  statement  of 
the  whole  of  the  transaction  between  them,  (f ) 

(3)  The  existence  of  any  separate  oral  agree- 
ment, constituting  a  condition  precedent  to  the 


(c)  Reffell  v.  Reffell,  L.  R.  1  P.  &  D.  139.  Mr.  Starkie 
extends  this  to  mistakes  in  some  other  formal  particulars.  3 
Star.  Ev.  787-788.  That  instrument  was  influenced  by  fraud 
or  misrepresentation  may  be  proven.  Montgomery  v.  Pick- 
ering, 116  Mass.  227;  Cushing  v.  Rice,  46  Me.  303;  Lull  v. 
Cass,  43  N.  H.  62;  Wharton  v.  Douglass,  76  Pa.  St.  273;  Wade 
v.  Saunders,  70  N.  C.  270.  Same  is  true  of  wills.  Lewis  v. 
Mason,  109  Mass.  169.  Or  was  obtained  by  duress,  Hibbard 
v.  Mills,  46  Vt.  243;  Davis  v.  Luster,  64  Mo.  43;  or  was  for 
illegal  purposes,  Totten  v.  U.  S.,  92  U.  S.  105;  Pratt  v.  Lang- 
don,  97  Mass.  97;  or  that  parties  were  incapacitated,  Staples 
v.   Wellington,   58   Me.   453. 

(d)  As  to  mistakes  of  fact,  see  Milmine  v.  Burnham,  76 
111.  362;  Mays  v.  Dwight,  82  Pa.  St.  462.  For  mistakes  of 
law  see  Gebb  v.  Rose,  40  Md.  387;  Galtra  v.  Sanasach,  53 
111.   456;   Thurmond  v.   Clark,    47   Ga.   500. 

(e)  Illustration    (c);    [4    Wigmore   Ev.,    §    2473,   et   seq.] 

(f)  Illustrations,  (d)  and  (e) ;  [4  Wigmore  Ev.,  §  2435 
et  seq.]. 


DOCUMENTARY  EVIDENCE  639 

attaching  of  any  obligation  under  any  such  con- 
tract, grant,  or  disposition  of  property,  (g) 

(4)  The  existence  of  any  distinct  subsequent 
oral  agreement  to  rescind  or  modify  any  such  con- 
tract, grant  or  disposition  of  property,  provided 
that  such  agreement  is  not  invalid  under  the 
Statute  of  Frauds,  or  otherwise,  (h) 

(5)  Any  usage  or  custom  by  which  incidents 
not  expressly  mentioned  in  any  contract  are  an- 
nexed to  contracts  of  that  description ;  unless  the 
annexing  of  such  incident  to  such  contract  would 
be  repugnant  to  or  inconsistent  with  the  express 
terms  of  the  contract,   (i) 

Oral  evidence  of  a  transaction  is  not  excluded 
by  the  fact  that  a  documentary  memorandum  of 
it  was  made,  if  such  memorandum  was  not  in- 
tended to  have  legal  effect  as  a  contract,  or  other 
disposition  of  property,  (j) 

Oral  evidence  of  the  existence  of  a  legal  rela- 
tion is  not  excluded  by  the  fact  that  it  has  been 
created  by  a  document,  when  the  fact  to  be 
proved  is  the  existence  of  the  relationship  itself, 
and  not  the  terms  on  which  it  was  established  or 
is  carried  on.  (k) 


(g)    Illustrations    (f)    and    (g);    [4   Wigmore   Ev.,    §    2435]. 
(h)    Illustration    (h);    [4    Wigmore   Ev.,    §    2441]. 
(i)    Wlgglesworth    v.    Dallison,    and    note    thereto,    S.    L.    C. 
598-628;    [4    Wigmore   Ev.,   §§   2440,   2465]. 

(j)    Illustration    (i).      [4   Wigmore  Ev.,   §    2439]. 
(k)   Illustration   (k). 


640  DOCUMENTARY  EVIDENCE 

The  fact  that  a  person  holds  a  public  office  need 
not  be  proved  by  the  production  of  his  written  or 
sealed  appointment  thereto,  if  he  is  shown  to  have 
acted  on  it.  (1) 

Illustrations. 

(a)  A  policy  of  insurance  is  effected  on  goods  "in  ships 
from  Surinam  to  London."  The  goods  are  shipped  in  a  par- 
ticular ship,  which  is  lost. 

The  fact  that  that  particular  ship  was  orally  excepted  from 
the  policy  cannot  be  proved.i 

(b)  An  estate  called  Gotton  Farm  is  conveyed  by  a  deed 
which  describes  it  as  consisting  of  the  particulars  described 
in  the  first  division  of  a  schedule  and  delineated  in  a  plan 
on  the  margin  of  the  schedule. 

Evidence  cannot  be  given  to  show  that  a  close  not  men- 
tioned in  the  schedule  or  delineated  in  the  plan  was  always 
treated  as  part  of  Gotton  Farm,  and  was  intended  to  be  con- 
veyed by  the   deed. 2 

(c)  A  institutes  a  suit  against  B  for  the  specific  perform- 
ance of  a  contract,  and  also  prays  that  the  contract  may  be 
reformed  as  to  one  of  its  provisions,  as  that  provision  was 
inserted  in  it  by  mistake. 

A  may  prove  that  such  a  mistake  was  made  as  would  en- 
title him   to  have  the  contract  reformed.3 

(d)  A  lets  land  to  B,  and  they  agree  that  a  lease  shall  be 
given  by  A  to  B.- 

Before  the  lease  is  given,  B  tells  A  that  he  will  not  sign  it 
unless  A  promises  to  destroy  the  rabbits.  A  does  promise. 
The  lease  is  afterwards  granted,  and  reserves  sporting  rights 
to  A,  but  does  not  mention  the  destruction  of  the  rabbits. 
B  may  prove  A's  verbal  agreement  as  to  the  rabbits. 4 

(e)  A  &  B  agree  verbally  that  B  shall  take  up  an  accep- 
tance of  A's,  and  that  thereupon  A  and  B  shall  make  a  written 
agreement  for  the  sale  of  certain  furniture  by  A  to  B.  B 
does  not  take  up  the  acceptance.  A  may  prove  the  verbal 
agreement  that  he  should  do  so. 5 

(1)  See  authorities  collected  in  1  Ph.  Ev.  449-450;  T.  E. 
s.  139. 

lWeston  v.   Eames,   1   Tau.    115. 

2Barton  v.  Dawes,  10  C.  B.  261-265. 

3Story's  Equity   Jurisprudence,   chap.    v.    ss.    153-162. 

4Morgan  v.  Griffiths,  L.  R.  6  Ex.  70;  and  see  Angell  v. 
Duke,   L.   R.    10   Q.   B.    174. 

5Lindley  v.  Lacey,  17  C.  B.  n.  s.  578. 


DOCUMENTARY  EVIDENCE  641 

(f)  A  &  B  enter  into  a  written  agreement  for  the  sale  of 
an  interest  in  a  patent,  and  at  the  same  time  agree  verbally 
that  the  agreement  shall  not  come  into  force  unless  C  ap- 
proves of  it.  C  does  not  approve.  The  party  interested  may 
show   this. s 

(g)  A,  a  farmer,  agrees  in  writing  to  transfer  to  B,  another 
farmer,  a  farm  which  A  holds  of  C.  It  is  verbally  agreed 
that  the  agreement  is  to  be  conditional  on  C's  consent.  B 
sues  A  for  not  transferring  the  farm.  A  may  prove  the 
condition  as  to  C's  consent  and  the  fact  that  he  does  not 
consent. 7 

(h)  A  agrees  in  writing  to  sell  B  14  lots  of  freehold  land 
and  make  a  good  title  to  each  of  them.  Afterwards  B  con- 
sents to  take  one  lot  though  the  title  is  bad.  Apart  from 
the  Statute  of  Frauds  this  agreement  might  be  proved. 8 

(i)  A  sells  B  a  horse,  and  verbally  warrants  him  quiet  in 
harness.  A  also  gives  B  a  paper  in  these  words:  "Bought 
of  A  a  horse  for   £7   2s.   6d." 

B  may   prove  the  verbal   warranty.9 

(j)  The  question  is,  whether  A  gained  a  settlement  by  oc- 
cupying and  paying  rent  for  a  tenement.  The  facts  of  occu- 
pation and  payment  of  rent  may  be  proved  by  oral  evidence, 
although    the  contract   is    in   writing.io 

PAROL   EVIDENCE   RULE. 
In  General. 
It  is  a  general  rule  that  the  terms  of  an  instrument  can- 
not be  altered  or  modified  by  parol  evidence,  though  other 
evidence  may  be  admitted  to  complete  the  same  or  show 
its  meaning: 

Arizona:  Fidelity  Title  G.  Co.  v.  Ruby,  16  Ariz.  75,  141 
P.  117. 

Arkansas:  Hanger  v.  Evins  &  Shinn,  38  Ark.  334;  De- 
laney  v.  Jackson,  95  Ark.  131,  128  S.  W.  859;  Frazier  v. 
State  Bank,  101  Ark.  135,  141  S.  W.  941;  Barker  v.  Lack, 
120  Ark.   323,   179   S.  W.   493. 

California:  Chapman  v.  Polack,  70  Cal.  487,  11  P.  764; 
Schroeder  v.   Schmidt,  74  Cal.  459,   16  P.   243;    Hewitt  v. 

BPyxn   v.   Campbell,   6   E.  &  B.   370. 
7Wallis  v.   Llttell,  11  C.  B.  n.  s.  369. 
t-Goss  v.   Lord   Nugent,   5   B.  &  Ad.   58,   65. 
oAllen  v.  Prink,  4  M.  &  W.  140. 
ioR.  v.  Hull,  7  B.  &  C.  611. 


642  DOCUMENTARY  EVIDENCE 

San  Jacinto   &   P.  V.   Irr.   Dist,   124   Cal.   186,   56   P.   893; 

Moore  v.  Trott,  156  Cal.  353,  104  P.  578;  In  re  Los  Angeles 

Trust  Co.,  158  Cal.  603,  112  P.  56. 

Colorado:     Andrews  v.   People,   33   Colo.   193,   79  P.   1031; 

Brown  v.  Holloway's  Estate,   47   Colo.   461,  108  P.  25. 

Idaho:     Whitney  v.  Dewey,  10  Ida.  633,  80  P.  1117;   Allen 

v.  Kitchen,  16  Ida.  133,   100  P.  1052;    Newmyer  v.   Roush, 

21  Ida.  106,  120  P.  464. 

Kansas:     Maffet  v.  Schaar,  89  Kan.  403,  131  P.  589;   Hart 

v.   Haynes,   96  Kan.   262,   150   P.   530. 

Montana:     Sanford   v.   Edwards,   19   Mont.   56,   47   P.   212; 

Montana  Ore  Pur.  Co.  v.  Maher,  32  Mont.  480,  81  P.  13; 

Piper  v.  Murray,  43  Mont.  230,  115  P.  669. 

Nebraska:     Minneapolis   Thresher   Mach.    Co.    v.    Otis,    78 

Neb.  233,  110  N.  W.  550. 

Nevada:     Gage  v.  Phillips,  21  Nev.  150,  26  P.  60;    Burns 

v.  Loftus,  32  Nev.  55,   104  P.  246. 

New  Mexico:     Locke  v.  Murdock,  20  N.  M.  540,  151  P.  298. 

North  Dakota:  Bank  v.  Lang,  2  N.  D.  66,  49  N.  W.  414; 
Deering  &  Co.  v.  Russell,  5  N.  D.  319,  65  N.  W.  691. 
Oklahoma:  Smith  &  Co.  v.  Thesmann,  20  Okl.  133,  93  P. 
977;  American  Trust  Co.  v.  Chitty,  36  Okl.  479,  129  P.  51. 
Oregon:  Hilgar  v.  Miller,  42  Or.  552,  72  P.  319;  Hillyard 
v.  Hewitt,  61  Or.  58,  120  P.  750;  Smith  v.  Bayer,  46  Or. 
143,  79  P.  497;  Beard  v.  Royal  Neighbors,  60  Or.  41,  118 
P.  171. 

South  Dakota:  Koester  v.  Northwestern  Port  Huron  Co., 
24  S.  D.  546,  124  N.  W.  740;  Barnes  v.  Hill  City  Lumber  Co., 
34  S.  D.  158,  147  N.  W.  775. 

Texas:  Laufer  v.  Powell,  30  Tex.  Civ.  App.  604,  71  S.  W. 
550;  Murray  Co.  v.  Putman,  (Tex.  Civ.  App.),  130  S.  W. 
631;  Barnes  v.  Bryce,  (Tex.  Civ.  App.),  140  S.  W.  240; 
First  Nat.  Bank  v.  Powell,  (Tex.  Civ.  App.),  149  S.  W. 
1096;  Central  Bank  &  T.  Co.  v.  Ford,  (Tex.  Civ.  App.), 
152  S.  W.  700;  Benton  v.  Kuykendall,  (Tex.  Civ.  App.), 
160  S.  W.  438. 

Utah:  Haskins  v.  Dern,  19  Utah  89,  56  P.  953;  Andrus 
v.  Blizzard,  23  Utah  233,  63   P.  888. 


DOCUMENTARY  EVIDENCE  643 

Washington:  Passow  &  Sons  v.  Kirkwood  Dist.  Co.,  54 
Wash.  196,  103  P.  34;  Spokane  Canal  Co.  v.  Coffman,  61 
Wash.   357,   112   P.   383. 

Wyoming:  Stickney  v.  Hughes,  13  Wyo.  257,  79  P.  922. 
California.  Parol  evidence  is  not  admissible  to  show  that 
a  deed  or  mortgage  delivered  to  the  grantee  was  to  take 
effect  only  upon  condition. — Mowry  v.  Heney,  86  Cal.  471, 
25  P.  17. 

The  rule  excluding  parol  evidence  tending  to  vary  or 
contradict  a  written  contract  applies  only  in  actions  be- 
tween the  parties  thereto  or  their  privies. — Massie  v. 
Chatom,  163  Cal.  772,  127  P.  56. 

North  Dakota.  Parol  evidence  is  not  admissible  to  show 
that  a  deed  or  mortgage  delivered  to  the  grantee  was  to 
take  effect  only  upon  condition. — First  Nat.  Bank  v.  Prior, 
10  N.  D.  146,  86  N.  W.  362;  Sargent  v.  Cooley,  12  N.  D.  1, 
94  N.  W.  576. 

Texas.  Parol  evidence  is  inadmissible  to  vary  the  implied 
contract  of  indorsement  of  negotiable  paper. — Heiden- 
heimer  v.  Blumenkron.  56  Tex.  308;  First  Nat.  Bank  v. 
Powell,    (Tex.   Civ.  App.),   149   S.  W.  1096. 

MATTERS    PROVABLE    BY    PAROL. 

In   General. 

California.     An  alleged  record  offered  in  evidence  may  be 

shown  by  parol  not  to  be  a  record. — Dyer  v.  Brogan,  70  Cal. 

136.  11  P.  589. 

A  new  parol  contract  superseding  the  written  one  may 
be  shown.— Pearsall  v.  Henry,  153  Cal.  314,  95  P.  154. 
Oklahoma.  Parol  evidence  is  always  admissible  to  show 
that  the  purported  contract  was  not  in  fact  the  contract 
made  and  entered  into  by  the  parties. — Colonial  Jewelry 
Co.  v.  Jones,  36  Okl.  788,  127  P.  405;  American  Trust  Co.  v. 
Chitty,   36  Okl.   479,   129   P.   51. 

South  Dakota.  Unless  the  plaintiff  seeks  a  reformation 
of  the  instrument  sued  on,  he  must  rely  upon  it  as  exe- 
cuted, as  its  terms  cannot  be  varied  by  parol  where  no 
reformation  is  sought.-  Castle  v.  Gleason,  31  S.  D.  590,  141 
N.  W.  516. 


644  DOCUMENTARY  EVIDENCE 

Texas.  Where  an  agreed  judgment  in  an  action  between 
guardian  and  ward  does  not  show  on  its  face  that  it  is 
void,  parol  evidence  is  admissible  to  prove  that  the  ward 
was  not  properly  represented. — Pearce  v.  Heyman,  (Tex. 
Civ.   App.),    158    S.   W.    242. 

A  map  which  is  a  land  office  archive  may  be  shown  by 
parol  evidence  to  be  incorrect. — Stevens  v.  Crosby,  (Tex. 
Civ.  App.),  166  S.  W.  62. 

Utah.  While  a  written  award  cannot  be  varied  by  parol 
evidence,  yet  the  testimony  of  arbitrators  is  admissible  to 
show  what  actually  took  place  during  the  proceedings  in 
which  it  was  awarded. — Jensen  v.  Deep  Creek  Farm  &  L. 
S.  Co.,  27  Utah  66,  74  P.  427. 

Washington.  In  a  suit  between  the  original  parties  to  a 
written  instrument  where  the  rights  of  third  parties  have 
not  intervened,  it  may  be  shown  by  parol  evidence  that  a 
clause  in  the  instrument  was  agreed  to  be  nonenforceable. 
—Young  v.  Stampfler,  27  Wash.  350,  67  P.  561;  Naden  v. 
Christopher,  62  Wash.  413,  113  P.  1116. 

Writing  Incomplete. 
California.  Unless  the  writing  be  one  which,  by  legal 
construction,  shows  upon  its  face  it  was  intended  to  ex- 
press the  whole  contract  between  the  parties,  parol  evi- 
dence may  be  admitted  to  show  what  the  agreement  really 
was.— Krenzberger  v.  Wingfield,  96  Cal.  251,  31  P.  109; 
Sivers  v.  Sivers,  97  Cal.  518,  32  P.  571;  Luitweiler  Pump- 
ing Eng.  Co.  v.  Ukiah  Water  &  Imp.  Co.,  16  Cal.  App.  198, 
116  P.  707. 

Kansas.  Where  a  written  agreement  is  incomplete,  and 
it  is  obvious  that  it  does  not  embrace  the  entire  contract 
of  the  parties,  oral  testimony  may  be  received  to  supple- 
ment and  explain  what  is  written. — Shepard  v.  Haas,  14 
Kan.  443;  St.  L.  &  W.  Ry.  Co.  v.  Maddox,  18  Kan.  546; 
Peters  v.  McVey,  59  Kan.  775,  52  P.  896;  Millich  v.  Armour, 
60  Kan.  229,  56  P.  1;  Heskett  v.  Border  Queen  Mill  &  E. 
Co.,  81  Kan.  356,  105  P.  432;  Evans  v.  McElfresh,  85  Kan. 
389,  116  P.  612. 

Nevada.  Where  the  written  contract  is  evidently  incom- 
plete, parol  evidence  is  admissible  to  supply  the  deficien- 


DOCUMENTARY  EVIDENCE  645 

cies. — Herring-Hall-Marvin  Safe  Co.  v.  Balliet,  38  Nev.  164, 
145  P.  941. 

North  Dakota.  An  application  for  insurance  in  which  the 
amount  of  the  policy  was  left  blank  to  be  filled  later  by 
agreement  of  the  parties  could  be  explained  by  parol, 
where  the  blank  was  filled  without  the  knowledge  of  the 
applicant.— Mulroy  v.  Jacobson,  24  N.  D.  354,  139  N.  W.  697. 

Texas.  Where  the  writing  which  is  incomplete  in  itself, 
but  refers  to  a  special  contract,  the  latter  may  be  shown 
by  parol. — State  Mutual  Life  Ins.  Co.  v.  Ballard,  (Tex. 
Civ.  App.),  122  S.  W.  267. 

Fraud. 
Arkansas.     The   execution   of  a   deed   may   be   shown   by 
parol  evidence  to  have  been  induced  by  false  representa- 
tions.—Harrell  v.  Hill,  19  Ark.  102;  Brown  v.  Le  May,  101 
Ark.  95,  141  S.  W.  759. 

California.  Where  an  instrument  is  sought  to  be  avoided 
for  fraud  or  mistake,  parol  evidence  is  admissible  to  show 
what  the  grantor  intended  to  do  or  convey. — Jersey  Farm 
Co.  v.  Atlantic  Realty  Co.,  164  Cal.  412,  129  P.  593. 

Fraud  in  the  procuring  of  the  execution  of  a  written  in- 
strument may  be  shown  by  oral  testimony. — Maxson  v. 
Llewelyn,  122  Cal.  199,  54  P.  734;  Providence  Jewelry  Co. 
v.  Nagel,  157  Cal.  497,  108  P.  312. 

Idaho.  On  direct  attack  corporate  records  may  be  shown 
to  be  false  by  parol  evidence. — Just  v.  Idaho  Canal  &  Imp. 
Co.,  16  Ida.  639,  102  P.  381. 

Kansas.  The  rule  that  parol  testimony  cannot  be  used  to 
vary  the  terms  of  a  written  instrument  has  no  application 
to  an  issue  of  fraud  in  the  making  or  procuring  of  the 
contract —Hart  v.  Haynes,  96  Kan.  262,  150  P.  530. 
Montana.  Fraud  in  procuring  the  execution  of  a  written 
instrument  may  be  shown  by  oral  testimony. — Sathre  v. 
Rolfe,  31  Mont.  85,  77  P.  431;  Hillman  v.  Luzon  Cafe  Co., 
49  Mont.  180,  142  P.  641. 

Nebraska.  Where  parol  evidence  of  deceit  and  fraud 
would  destroy  the  effect  of  a  writing,  it  is  admissible. — 
Minneapolis  Thresh.  Mach.  Co.  v.  Otis,  78  Neb.  233,  110 
N.  W.  550. 


646  DOCUMENTARY  EVIDENCE 

Oklahoma.  Fraud  in  procuring  the  execution  of  a  written 
instrument  may  be  shown  by  oral  testimony  in  avoidance 
of  the  same.— Smith  &  Co.  v.  Thesmann,  20  Okl.  133,  93 
P.  977;  Shuler  v.  Hall,  42  Okl.  325,  141  P.  280. 
South  Dakota.  Under  the  statute  (§  1256)  misrepresenta- 
tions which  induced  a  party  to  execute  a  written  instru- 
ment may  be  shown  by  oral  proof  in  avoidance  of  its  terms. 
— Rochford  v.  Barrett,  22  S.  D.  83,  115  N.  W.  522;  South 
Dakota  Cent.  Ry.  Co.  v.  Smith,  22  S.  D.  210,  116  N.  W. 
1120;  Rectenbaugh  v.  Northwestern  Port  Huron  Co.,  22 
S.  D.  410,  118  N.  W.  697;  DePue  v.  Mcintosh,  26  S.  D.  42, 
127  N.  W.  532;  Sioux  Remedy  Co.  v.  Lindgren,  27  S.  D.  123, 
130  N.  W.  49. 

Texas.  In  equity,  fraud,  accident  or  mistake  may  be 
shown  by  parol  evidence  to  have  entered  into  the  making 
of  a  written  instrument  in  avoidance  of  its  terms. — Belcher 
v.  Mulhall,  57  Tex.  17;  Murray  Co.  v.  Putman,  (Tex.  Civ. 
App.),  130  S.  W.  631;  Benton  v.  Kuykendall,  (Tex.  Civ. 
App.),   160  S.  W.  438. 

To  show  that  a  conveyance  was  not  made  with  fraudu- 
lent intent,  oral  testimony  is  admissible  to  prove  that  the 
land  was  originally  conveyed  to  the  grantor  upon  a  con- 
dition resting  in  parol;  that  such  condition  had  not  been 
performed,  and  that  the  re-conveyance  was  made  to, carry 
out  the  parol  agreement  to  reconvey  upon  failure  to  per- 
form such  condition. — Paris  Grocery  Co.  v.  Burks,  56  Tex. 
Civ.   App.   223,   120   S.  W.   552. 

Fraud  may  be  shown  by  parol  evidence  to  impeach  the 
present  validity  of  an  indorsement  of  negotiable  paper. — 
First  Nat.  Bank  v.  Powell,  (Tex.  Civ.  App.),  149  S.  W. 
1096. 

Fraud  inducing  the  execution  of  a  written  instrument 
may  be  shown  by  parol  evidence. — United  States  Gypsum 
Co.  v.  Shields,  (Tex.  Civ.  App.),  106  S.  W.  726;  Kirby  v. 
Thurmond,  (Tex.  Civ.  App.),  152  S.  W.  1099;  Common- 
wealth Bonding  &  C.  Co.  v.  Bomar,  (Tex.  Civ.  App.),  169 
S.  W.  1060;  Le  Master  v.  Hailey,  (Tex.  Civ.  App.),  176 
S.    W.    818. 

Washington.  That  the  execution  of  a  written  instrument 
was  induced  by  fraud  may  be  shown  by  oral  testimony. 


DOCUMENTARY  EVIDENCE  647 

—O'Connor  v.  Lighthizer,  34  Wash.  152,  75  P.  643;  Lilien- 
thal  v.  Herren,  42  Wash.  209,  84  P.  829;  Boynton  v.  John- 
son, 68  Wash.  370,  123  P.  522. 

Mistake. 
Arkansas.     A  mutual  mistake  in  the  writing  may  be  shown 
by  parol  evidence. — Kansas  City   Southern     Ry.     Co.     v. 
Smithson,  113  Ark.  305,  168  S.  W.  555. 

North  Dakota.  Where  it  appears  that  a  mistake  in  a  writ- 
ten instrument  was  mutual,  parol  evidence  is  admissible 
to  show  the  same. — Deering  &  Co.  v.  Russell,  5  N.  D.  319, 
65  N.  W.  691. 

Oklahoma.  It  may  be  shown  by  parol  that  a  wrong  name 
was  inserted  in  a  lease,  as  lessor,  by  mistake,  and  who 
the  real  party  in  interest  is. — Conger  v.  Olds,  1  Okl.  232, 
32  P.  337. 

Oregon.  An  alleged  mistake  in  a  deed  must  be  reformed 
in  equity,  it  cannot  be  done  by  oral  testimony  when  the 
instrument  is  offered  in  evidence  in  an  action  of  ejectment. 
— Holcomb  v.  Mooney,  13  Or.  503,  11  P.  274. 

Bad  Faith. 
Colorado.     Parol  evidence  varying  the  terms  of  a  written 
instrument  is  admissible   to   show  bad   faith. — Whitehead 
v.  Linn,  45  Colo.  427,  102  P.  286. 

Illegality. 
Utah.     Parol  evidence  is  admissible  to  prove  that  a  deed 
is  void  on  the  ground  of  public  policy. — Bell's  Estate,  In 
re,  29  Utah  1,  80  P.  615. 

Wyoming.  Parol  evidence  is  admissible  to  show  that  a 
contract  is  illegal  on  the  ground  of  public  policy. — Stick- 
ney  v.  Hughes,  12  Wyo.  397,  75  P.  945. 

Consideration. 

Generally   the   actual   consideration    for   a    writing   may 
be  shown  by  parol  evidence: 

Arkansas:  Keathley  v.  Keathley,  115  Ark.  605,  170  S.  W. 
564;  Mewes  v.  Home  Bank,  116  Ark.  155,  172  S.  W.  853; 
Kilpatrick  v.  Rowan,  119  Ark.  175,  177  S.  W.  893. 


648  DOCUMENTARY  EVIDENCE 

California:  Field  v.  Austin,  131  Cal.  379,  63  P.  692;  Treat 
v.  Treat,  170  Cal.  329,  150  P.  53. 

Colorado:  Welch  v.  Brown,  46  Colo.  129,  103  P.  296; 
Equitable  Surety  Co.  v.  Connors,  27  Colo.  App.  213,  147 
P.  438. 

Idaho:  Boise  Valley  Const.  Co.  v.  Kroeger,  17  Ida.  384, 
105  P.  1070. 

Kansas:     Miller  v.  Edgerton,  38  Kan.  36,  15  P.  894;  Milich 
v.  Armour  Packing  Co.,  60  Kan.  229,  56  P.  1. 
Montana:     Noyes  v.  Young,  32  Mont.  228,  79  P.  1063. 
Nebraska:     Harman  v.  Fisher,  90  Neb.  688,  134  N.  W.  246; 
Swanson  v.  Union  Pac.  R.  Co.,  98  Neb.  373,  152  N.  W.  744. 
Nevada:     Burns  v.  Loftus,  32  Nev.  55,  104  P.  246. 
North    Dakota:     First   State   Bank  v.   Kelly,   30   N.   D.   84, 
152  N.  W.  125. 

Oklahoma:     Perry  v.  Jones,   (Okl.),  150  P.  168. 
Oregon:     Barbre  v.  Goodale,  28  Or.  465,  43  P.  378;  United 
States  Fidelity  &  G.  Co.  v.  Martin,  77  Or.  369,  149  P.  1023. 
South  Dakota:     Miller  v.  Kennedy,  12  S.  D.  478,  81  N.  W. 
906. 

Texas:     Detering  v.  Boyles,    (Tex.  Civ.  App.),   155  S.  W. 
984;   Ramsey  v.  Bird,   (Tex.  Civ.  App.),  170  S.  W.  1075. 
Utah:     Miller  v.  Livingston,  22  Utah  174,  61  P.  569;   Hall 
v.  McNally,  23  Utah  606,  65  P.  724. 

Washington:  Don  Yook  v.  Washington  Mill  Co.,  16  Wash. 
459,  47  P.  964;  Harbican  v.  Skinner,  83  Wash.  596,  145 
P.  582. 

Arkansas.  Whenever  in  a  deed  the  consideration,  or  an 
admission  of  its  receipt,  is  stated  merely  as  a  fact,  that 
part  of  the  deed  is  received  as  a  receipt  would  be,  and 
the  statement  is  subject  to  be  varied,  modified,  and  ex- 
plained; but  if  the  stated  consideration  is  in  the  nature  of 
a  contract,  that  is,  if  by  it  a  right  is  vested,  created  or 
extinguished,  the  terms  of  the  contract  thereby  evidenced 
may  not  be  varied  by  parol  proof. — Wallace  v.  Meeks,  99 
Ark.  350,   138   S.  W.   638. 

California.  The  same  rule  prevails  in  California. — Hen- 
drick  v.  Crowley,  31  Cal.  472. 


DOCUMENTARY  EVIDENCE  649 

Nevada.     It  may  be  shown  by  parol  evidence  that  the  con- 
sideration for  a  deed  was   different  from  that  expressed 
therein.— Lake  v.  Lake,  18  Nev.  361,  4  P.  711. 
Oklahoma.     Parol  evidence  is  admissible  to  show  that  the 
consideration  for  a  written  contract  is  illegal,  or  that  the 
contract   was   made   in   furtherance   of   objects   forbidden 
by  law.— Howard  v.  Farrar,  28  Okl.  490,  114  P.  695. 
Oregon.     Where  a  deed  recites  a  consideration  as  having 
been  received,   it   cannot  be   disputed   by  oral   testimony. 
— Finlayson  v.  Finlayson,  17  Or.  347,  21  P.  57. 
Washington.     Where  a  contract  for  the  sale  of  lands  fixes 
the  consideration,  such  stipulated  terms  cannot  be  varied 
by   parol    evidence. — Spokane    Canal    Co.    v.    Coffman,    61 
Wash.  357,  112  P.  383. 

Want  or  Failure  of  Consideration. 

Arizona.  Between  original  parties  to  the  writing,  want 
of  consideration  for  a  note  may  be  shown  by  parol. — 
Fidelity  Title  G.  Co.  v.  Ruby,  16  Ariz.  75,  141  P.  117. 

Arkansas.  Want  or  failure  or  illegality  of  the  considera- 
tion for  a  writing  may  be  shown  by  parol  evidence. — Mar- 
tin v.  Tucker,  35  Ark.  279;  Taylor  v.  Purcell,  60  Ark.  606, 
31  S.  W.  567;  Hencke  v.  Standiford,  66  Ark.  535,  52  S. 
W.  1;  Little  v.  Arkansas  Nat.  Bank,  105  Ark.  281,  152  S. 
W.  281. 

California.  A  different  or  another  consideration  for  a 
written  instrument  cannot  be  shown,  but  want  of  consid- 
eration may  be  shown  by  parol. — Pearsall  v.  Henry,  153 
Cal.  314,  95  P.  154;  Stanton  v.  Weldy,  19  Cal.  App.  374, 
126  P.   175. 

Colorado.  Parol  evidence  is  inadmissible  to  show  that 
there  was  no  consideration  for  a  release  and  accord  and 
satisfaction  of  unliquidated  damages. — Harvey  v.  Denver 
&  R.  G.  R.  Co..  44  Colo.  258,  99  P.  31. 

Kansas.  Want  or  failure  of  consideration  for  a  note  may 
be  shown  by  parol  evidence. — Aultman  Threshing  &  E. 
Co.  v.  Knoll.  71  Kan.  109,  79  P.  1074. 

That  the  execution  of  a  written  instrument  was  induced 
by  fraud   may   be   shown   by   oral   testimony. — State   Life 


650  DOCUMENTARY  EVIDENCE 

Ins.  Co.  v.  Johnson,  73  Kan.  567,  85  P.  597;  Maffet  v. 
Schaar,  89  Kan.  403,  131  P.  589. 

Nebraska.  Want  of  or  illegal  consideration  for  a  con- 
tract may  be  shown  by  parol  evidence. — Luce  v.  Foster, 
42  Neb.  818,  60  N.  W.  1027. 

Texas.  Want  of  consideration  for  a  writing  may  be  shown 
by  parol  evidence. — Central  Bank  &  T.  Co.  v.  Ford,  (Tex. 
Civ.  App.),  152  S.  W.  700. 

Washington.  Failure  of  consideration  for  a  written  in- 
strument may  be  shown  by  parol  evidence. — Johnson 
County  Sav.  Bank  v.  Rapp,  47  Wash.  30,  91  P.  382;  Preas 
v.  Vollintine,  53  Wash.  137,  101  P.  706;  Wolff  v.  Love, 
78  Wash.  561,  139  P.  597. 

Delivery. 
Colorado.  The  rule  that  a  writing  cannot  be  contradicted, 
varied  or  altered  by  proof  of  an  oral  contemporaneous 
agreement  is  not  infringed  by  proof  of  such  an  agreement, 
accompanied  by  satisfactory  evidence  that  the  written  in- 
strument was  either  never  delivered,  or  delivered  on  a 
condition  which  had  not  been  performed,  or  delivered  un- 
der circumstances  which  show  that  the  paper,  if  it  be  of 
commercial  character,  was  never  intended  to  be  the  prom- 
issory note  of  the  party  who  executed  it. — Denver  Brew- 
ing Co.  v.  Barets,  9  Colo.  App.  341,  48  P.  834;  Mosier  v. 
Kershow,  16  Colo.  App.  453,  66  P.  449. 

Parol  evidence  is  admissible  to  show  nondelivery  of  a 
negotiable  instrument. — Norman  v.  McCarthj'-,  56  Colo.  290, 
138  P.  28. 

Idaho.     Parol  evidence  is  admissible  to   show  delivery. — 
Whitney  v.  Dewey,  10  Ida.  633,  80  P.  1117. 
North  Dakota.     Parol  evidence  is  admissible  to  show  that 
a    written    instrument    was    never    delivered. — Sargent    v. 
Cooley,  12  N.  D.  1,  94  N.  W.  576. 

Oregon.  It  may  be  shown  by  parol  evidence  that  an  al- 
leged written  instrument  offered  to  prove  ah  agreement 
was  never  delivered  for  that  purpose. — Branson  v.  Ore- 
gonian  Ry.  Co.,  11  Or.  161,  2  P.  86. 

South  Dakota.  The  nondelivery  of  a  written  Instrument 
may  be  shown  by  parol  evidence. — Koester  v.  Northwest- 
ern Port  Huron  Co.,  24  S.  D.  546,  124  N.  W.  740. 


DOCUMENTARY  EVIDENCE  651 

Acceptance. 
Arkansas.     The  acceptance  of  a  note  by  mistake  may  be 
shown  by  parol  evidence  where  it  is  sought  to  rescind  the 
contract.— Frazer  v.  State  Bank,  101  Ark.  135,  141  S.  W. 
941. 

In  avoidance  of  a  note  given  for  premiums  on  an  in- 
surance policy,  it  may  be  shown  by  parol  that  the  in- 
sured refused  to  accept  the  policy  although  same  was 
left  with  him.— Gray  v.  Blackwood,  112  Ark.  332,  165  S. 
W.   958. 

Alterations  or  Additions. 
Arkansas.  Unauthorized  changes  or  additions  to  a  written 
contract  may  be  shown  by  parol  to  have  been  made  after 
its  execution. — Barton-Parker  Mfg.  Co.  v.  Taylor,  78  Ark. 
586,  94  S.  W.  713;  Main  v.  Oliver,  88  Ark.  383,  114  S.  W. 
917;  Brooks  Medicine  Co.  v.  Jeffries,  94  Ark.  575,  127  S. 
W.  960;  Keatley  v.  Holland  Banking  Co.,  112  Ark.  608, 
166   S.  W.  953. 

Washington.  The  alteration  of  a  written  contract  after 
its  execution  may  be  shown  by  oral  testimony. — Price  v. 
Stanbra,  45  Wash.  143,  88  P.  115. 

Incapacity  To  Contract. 
Arizona.     Incapacity   to   contract   because   of   intoxication 
may  be  shown  by  proof  of  the  condition  of  the  party  on 
days  previous  to  the  transaction. — Cole  v.   Bean,   1  Ariz. 
377.  25  P.  538. 

Effect  of  Instrument. 
Nebraska.  Though  there  be  no  reservation  in  a  deed,  the 
purpose  for  which  it  was  given  may  be  shown  by  parol  evi- 
dence, and  the  entire  transaction  may  be  gone  into  in  order 
to  determine  the  effect  of  the  conveyance. — Collingwood 
v.  Bank,  15  Neb.  121,  17  N.  W.  359;  Donisthorpe  v.  Fre- 
mont, E.  &  M.  V.  R.  Co.,  30  Neb.  142,  46  N.  W.  240. 

Abandonment  of  Contract. 
Washington.     Parties  to  a  written  contract  may.  by  mutual 
oral  agreement,  abandon  it. — Lamar  v.  Anderson,  71  Wash. 
314.   128   P.   672. 


652  DOCUMENTARY  EVIDENCE 

SEPARATE  ORAL  AGREEMENT. 

Arkansas.  A  separate,  independent  verbal  agreement,  re- 
lating to  a  matter  not  embraced  in  the  written  contract, 
may  be  proved  by  parol  testimony. — Ramsay  v.  Capshaw, 
71  Ark.  408,  75  S.  W.  479;  Burgie  v.  Bailey,  91  Ark.  383, 
121  S.  W.  266;  Cox  v.  Smith,  99  Ark.  218,  138  S.  W.  978. 

Parol  evidence  is  admissible  to  add  to  a  written  con- 
tract some  term  or  provision,  where  the  writing,  on  ac- 
count of  fraud  or  mistake,  does  not  contain  all  of  the 
contract. — Brooks  Medicine  Co.  v.  Jeffries,  94  Ark.  575,  127 
S.  W.  960;   Cox  v.  Smith,  99  Ark.  218,  138  S.  W.  978. 

A  collateral  parol  agreement  not  contradicting  or  vary- 
ing the  written  contract  may  be  established. — Trumbull 
v.  Harris,  102  Ark.  669,  145  S.  W.  547. 

California.  It  is  competent  to  prove  by  oral  testimony 
that  growing  crops  were  excepted  from  the  operation  of 
a  deed  to  the  land.— Vulicevich  v.  Skinner,  77  Cal.  240,  19 
P.  424. 

Where  the  writing  is  silent  as  to  time  of  payment,  it 
may  be  established  by  parol  evidence. — Sivers  v.  Sivers, 
97  Cal.  518,  32  P.  571;  Savings  Bank  v.  Asbury,  117  Cal.  96, 
48  P.  1081;  Wolters  v.  King,  119  Cal.  172,  51  P.  35. 

Where  a  bill  of  sale  covered  all  the  tangible  property  of 
a  business,  it  may  be  shown  by  parol  evidence  that  the 
intangible  property  was  also  included  in  the  transaction. 
That  the  parties  intended  to,  but  did  not  reduce  this  to 
writing,  was  immaterial. — Webber  v.  Smith,  24  Cal.  App. 
51,  140  P.  37. 

Colorado.  Where  a  writing  signed  by  one  of  the  parties 
only  does  not  purport  to  be  a  complete  contract,  or  it  is 
apparent  that  it  is  not,  and  relates  to  matters  not  neces- 
sary to  be  in  writing,  parol  evidence  is  permissible  to  es- 
tablish so  much  of  the  contract  as  is  not  reduced  to  writ- 
ing.—Mulford  v.  Torrey  Exp.  Co.,  45  Colo.  81,  100  P.  596. 

Kansas.  Where  the  written  contract  is  evidently  incom- 
plete, parol  testimony  is  admissible  to  disclose  the  whole 
transaction.— St.  L.  L.  &  W.  Ry.  Co.  v.  Maddox,  18  Kan. 
546;   Royer  v.  Western  Silo  Co.,  92  Kan.  333,  140  P.  872. 


DOCUMENTARY  EVIDENCE  653 

It  is  competent  to  prove  by  oral  testimony  that  growing 
crops  were  excepted  from  the  operation  of  a  deed  to  the 
land.— Mabry  v.  Harp,  53  Kan.  398,  36  P.  743. 

An  original  parol  agreement  defining  the  rights  of  the 
parties  under  a  written  instrument,  may  be  proved. — 
Trice  v.  Yoeman,  8  Kan.  App.  537,  54  P.  288. 

That  a  set-off  was  to  be  allowed  on  a  note  may  be  shown 
by  parol  evidence,  where  its  allowance  was  a  part  of  the 
consideration  for  the  note. — Owensboro  Wagon  Co.  v. 
Wilson  &   Co.,   79   Kan.   633,   101  P.  4. 

Whether  oral  evidence  may  be  allowed  to  supplement 
a  contractual  writing,  by  supplying  a  term  not  therein  re- 
ferred to,  depends  upon  whether  the  instrument  was  in- 
tended to  cover  that  feature  of  the  transaction;  hence 
where  an  action  is  brought  for  the  value  of  services  ren- 
dered under  a  contract  which  does  not  mention  the  com- 
pensation therefor,  an  agreement  may  be  shown  that  the 
services  were  to  be  rendered  gratuitously.  See  cases 
cited.— Clark  v.  Townsend,  96  Kan.  650,  153  P.  555. 
Montana.  Parol  evidence  may  be  received  of  an  independ- 
ent oral  agreement  not  inconsistent  with  the  written  con- 
tract, and  in  respect  of  which  the  latter  does  not  speak, 
provided  such  oral  agreement  is  based  on  some  collateral 
matter  and  must  have  operated  as  an  inducement  to  the 
complaining  party  to  enter  into  the  agreement,  whereas 
in  the  absence  of  it  he  would  not  have  done  so. — Arming- 
ton  v.  Stelle,  27  Mont.  13,  69  P.  115;  Kelly  v.  Ellis,  39 
Mont.  597,   104  P.  873. 

Where  the  written  contract  necessarily  implies  that  it 
does  not  contain  the  entire  agreement,  the  omitted  portion 
may  be  established  by  oral  testimony.  So  where  the  writ- 
ten guarantee  that  a  machine  would  do  first  class  work, 
"up  to  claims"  and  no  claims  were  mentioned,  the  oral 
claims  were  provable  by  parol. — Hillman  v.  Luzon  Cafe 
Co.,  49  Mont.  180,  142  P.  641. 

Nebraska.  Evidence  of  a  parol  agreement  either  prior  to 
or  contemporaneous  with  the  written  instrument  is  admis- 
sible, when  the  parol  agreement  is,  as  to  some  matters, 
collateral  to  the  written  contract,  or  if  the  parol  agree- 
ment constituted  an  inducement  for  the  execution  of  the 


654  DOCUMENTARY  EVIDENCE 

writing.— Norman  v.   Waite,  30  Neb.   302,   46  N.  W.   639; 
Wehnes  v.  Roberts,  92  Neb.  696,  139  N.  W.  212. 

Where  the  parol  contemporaneous  agreement  was  the 
inducing  and  moving  cause  of  the  written  contract,  or 
where  the  parol  agreement  forms  a  part  of  the  considera- 
tion for  a  written  contract,  and  where  the  party  executed 
the  written  contract  upon  the  faith  of  the  parol  contract 
or  representations,  the  latter  may  be  proved. — Barnett  v. 
Pratt,  37  Neb.  352,  55  N.  W.  1050. 

Parol  evidence  tending  to  establish  a  separate  agreement 
between  the  parties  to  a  written  contract,  as  to  matters 
upon  which  such  contract  is  silent,  which  does  not  tend 
to  vary  or  contradict  the  terms  of  the  writing,  is  admis- 
sible.—Huffman  v.   Ellis,   64   Neb.   623,   90  N.  W.   552. 

If  a  written  memorandum  confirmatory  of  a  previous  oral 
agreement  does  not  purport  to  recite  the  whole  of  the  lat- 
ter, oral  testimony  is  admissible  to  supply  omitted  cove- 
nants not  inconsistent  with  the  writing. — DeLaval  Sepa- 
rator Co.  v.  Jelinek,  77  Neb.  192,  109  N.  W.  169. 

That  growing  crops  were  excepted  from  the  operation 
of  a  deed  to  the  land  may  be  proved  by  parol. — Cooper  v. 
Kennedy,  86  Neb.  122,  124  N.  W.  1131. 
New  Mexico.  Oral  testimony  of  a  distinct,  valid,  parol 
agreement  prior  to  or  contemporaneous  with  the  written 
contract  is  admissible  where  it  does  not  vary  or  contra- 
dict the  writing,  and  the  latter  is  silent  on  the  subject. 
Thus  where  the  writing  provided  for  the  sale  of  a  busi- 
ness, the  parol  agreement  of  the  seller  not  to  engage  in 
such  business  for  a  certain  time  could  be  proved.  See 
cases  cited.— Locke  v.  Murdoch,  20  N.  M.  540,  151  P.  298. 
North  Dakota.  If  the  written  contract,  construed  in  view 
of  the  circumstances  in  which,  and  the  purpose  for  which, 
it  was  executed,  shows  that  it  was  not  meant  to  contain 
the  whole  bargain,  then  parol  evidence  is  admissible  to 
prove  a  term  upon  which  the  writing  is  silent  not  incon- 
sistent with  what  is  written.  So,  in  an  action  on  a  writ- 
ten contract  for  failure  to  feed  and  care  for  stock,  oral 
proof  of  the  default  of  the  plaintiff  to  provide  buildings  in 
which  the  stock  could  be  housed,  is  admissible. — Putnam 
v.  Prouty,  24  N.  D.  517,  140  N.  W.  93. 


DOCUMENTARY  EVIDENCE  655 

Oklahoma.  Where,  from  the  writing  it  is  doubtful  whether 
the  parties  contracted  in  a  representative  capacity  or  as 
individuals,  oral  testimony  is  competent  as  between  the 
original  parties  for  the  purpose  of  showing  their  true  in- 
tent in  the  execution  of  the  instrument. — Janes  v.  Citi- 
zens' Bank.  9  Okl.  546,  60  P.  290;  Farmers*  &  M.  Bank  v. 
Hoyt,  29  Okl.  772,  120  P.  264;  Weagant  v.  Camden,  37  Okl. 
508,  132  P.  487;  Cohee  v.  Turner  &  Wiggins,  37  Okl.  778, 
132  P.  1082. 

It  is  competent  to  prove  by  oral  testimony  that  growing 
crops  were  excepted  from  the  operation  of  a  deed  to  the 
land.— Grabow  v.   McCracken.  23   Okl.   612,   102   P.   84. 

Though  a  bill  of  lading  be  a  complete  contract  to  trans- 
port freight  to  the  destination,  a  parol  agreement  provid- 
ing for  what  shall  be  done  with  it  after  reaching  the  des- 
tination may  be  shown  by  parol. — Atchison,  T.  &  S.  F.  Ry. 
Co.  v.  McCluskey,  30  Okl.  711.  120  P.  985. 

Where  the  written  contract  fails  to  specify  the  time 
within  which  it  is  to  be  performed,  the  law  requires 
that  it  be  within  a  reasonable  time,  and  parol  evidence  is 
inadmissible  to  show  that  the  time  was  otherwise  fixed. — 
Fisher  v.  Gossett,  36  Okl.  261,  128  P.  293. 
Oregon.  Where  the  contract  is  not  one  required  by  the 
statute  of  frauds  to  be  in  writing,  the  rule  that  the  terms 
of  the  writing  cannot  be  varied  by  parol  is  not  violated  by 
admitting  parol  evidence  to  establish  the  parts  of  the 
contract  not  contained  in  the  writing. — American  Contract 
Co.  v.  Bullen  Bridge  Co.,  29  Or.  549,  46  P.  138;  Williams 
v.  Mt.  Hood  Ry.  &  P.  Co.,  57   Or.  251,  110  P.  490. 

So  where  the  contract  of  sale  of  an  automobile  was  silent 
on  the  subject,  it  could  be  shown  by  parol  that  the  pur- 
chaser was  to  be  instructed  how  to  operate  it. — Holmboe 
v.  Morgan.  69  Or.  395,  138  P.  10S4. 

Where  land  is  conveyed  subject  to  a  mortgage  the  pay- 
ment of  which  is  not  stated  in  the  deed  to  have  been  as- 
sumed by  grantee,  oral  testimony  is  admissible  to  estab- 
lish the  fact  that  the  grantor  orally  promised  to  pay  the 
grantee  the  amount  of  the  incumbrance. — Schroeder  v. 
Tillman,  73  Or.  538,  144  P.  751. 


656  DOCUMENTARY  EVIDENCE 

South  Dakota.  Parol  evidence  is  admissible,  as  between 
the  original  parties,  when  something  on  the  face  of  the 
writing  creates  a  doubt  as  to  the  parties  obligated,  and 
the .  recitals  of  the  instrument'  are  such  that  the  court 
cannot  by  inspection  determine  the  question  as  a  matter 
of  law.— Osborne  &  Co.  v.  Stringham,  4  S.  D.  593,  57  N. 
W.  766;  National  Cash  Register  Co.  v.  Pfister,  5  S.  D.  143, 
58  N.  W.  270;   Miller  v.  Way,  5  S.  D.  468,  59  N.  W.  467. 

Where  the  parol  contemporaneous  agreement  was  the 
inducing  and  moving  cause  of  the  written  contract,  or 
where  the  parol  agreement  forms  a  part  of  the  consider- 
ation for  a  written  contract,  and  where  the  party  executed 
the  written  contract  upon  the  faith  of  the  parol  contract 
or  representations,  the  latter  may  be  proved. — De  Rue  v. 
Mcintosh,  26  S.  D.  42,  127  N.  W.  532. 

It  is  competent  to  prove  by  oral  testimony  that  growing 
crops  Were  excepted  from  the  operation  of  a  deed  to  the 
lands.— Bjornson  v.  Rostad,  30  S.  D.  40,  137  N.  W.  567. 

Texas.  When  the  original  contract  was  complete  in  itself 
and  was  entirely  verbal,  and  a  part  only  thereof  is  subse- 
quently reduced  to  writing,  parol  testimony  as  to  such  part 
is  admissible. — San  Jacinto  Rice  Co.  v.  Lockett  Co.,  (Tex. 
Civ.  App.),  145  S.  W.  1046;  American  Rio  Grande  L.  &  I. 
Co.  v.  Mercedes  Plantation  Co.,  (Tex.  Civ.  App.),  155  S. 
W.  286. 

Any  separate  oral  agreement  as  to  any  matter  on  which 
the  writing  is  silent,  not  inconsistent  with  its  terms,  may 
be  shown  by  parol  evidence,  if,  from  the  circumstances  of 
the  case,  the  court  infers  that  the  parties  did  not  intend 
the  writing  to  be  complete  within  itself,  but  shows  that 
some  material  thing  was  left  out.  So  where  a  contract 
for  excavation  provided  that  the  earth  taken  out  should 
be  transported  elsewhere  as  designated  by  the  other  party, 
it  may  be  shown  that  such  party  orally  agreed  to  furnish 
cars  for  the  transportation. — -Magnolia  Warehouse  &  S. 
Co.  v.  Davis  &  Blackwell,  (Tex.  Civ.  App.),  153  S.  W.  670. 

If  the  parol  agreement  set  up  relates  to  a  matter  beyond 
the  scope  of  the  written  contract,  it  may  be  proved;  and 
so  it  has  been  held  that  the  delivery  of  a  note  on  condi- 


DOCUMENTARY  EVIDENCE  657 

tion,  may  be  shown. — Watson  v.  Rice,  (Tex.  Civ.  App.),  166 
S.  W.  106. 

Utah.  Where  a  note  was  transferred  with  an  endorsement 
which  it  had  been  agreed  should  be  erased,  parol  evidence 
was  held  admissible  to  prove  such  agreement,  where  the 
indorsee  took  the  note  with  knowledge  thereof. — Gregg  v. 
Groesbeck.  11  Utah  310,  40  P.  202. 

Washington.  Where  a  bill  of  sale  of  a  business  is  com- 
plete within  itself,  that  an  item  was  included  though  not 
mentioned,  may  be  shown  by  parol  when  not  inconsistent 
with  the  writing. — Welever  v.  Advance  Shingle  Co.,  34 
Wash.  331,  75  P.  863;  Potlatch  Lumber  Co.  v.  North  Coast 
Prod.  Co.,  78  Wash.  533,  139  P.  496. 

Where  the  whole  agreement  is  not  reduced  to  writing, 
parol  evidence  of  a  collateral  contemporaneous  agreement 
covering  the  omitted  part,  to  be  admissible,  must  not  be 
inconsistent  with,  or  repugnant  to  the  plain  intention  of 
the  parties,  as  expressed  in  or  legally  implied  by  the  writ- 
ten instrument.— Smith  Sand  &  G.  Co.  v.  Corbin,  81  Wash. 
494,  142  P.  1163  (See  cases  cited) ;  Kleeb  v.  Mclnturff,  62 
Wash.  508,  114  P.  184. 

Under  this  rule  where  the  writing  specifies  no  time  of 
performance  the  legal  implication  that  it  shall  be  a  rea- 
sonable time  cannot  be  varied  by  parol. — Smith  Sand  & 
G.  Co.  v.  Corbin,  81  Wash.  494,  142  P.  1163. 

Wyoming.  Where  a  bill  of  sale  purports  to  cover  all  ani- 
mals of  a  certain  brand,  parol  evidence  is  admissible  to 
show  that  at  the  time  of  the  transaction  the  seller  told 
the  purchaser  that  there  were  some  animals  carrying  the 
brand  that  did  not  belong  to  him. — Hecht  v.  Johnson,  3 
Wyo.   277,   21   P.   1080. 

Constituting  Condition   Precedent. 

Arizona.  It  may  be  shown  that  it  was  orally  agreed  that 
a  promissory  note  was  intended  to  be  binding  only  upon 
the  happening  of  a  designated  contingency. — Fidelity  Title 
G.  Co.  v.   Ruby,   16  Ariz.  75.   141   P.   117. 

Arkansas.  Parol  evidence  is  admissible  to  show  the  con- 
ditions upon  which  written  instruments  are  delivered,  or 


658  DOCUMENTARY  EVIDENCE 

that  they  are  not  to  take  effect  until  certain  contingencies 
have  happened.— Kelly  v.  Carter,  55  Ark.  112,  17  S.  W.  706; 
State  v.  Wallis,  57  Ark.  64,  20  S.  W.  811;  Graham  v.  Rem- 
mel,  76  Ark.  140,  88  S.  W.  899;  Worthen  v.  Stewart,  116 
Ark.  294,  172  S.  W.  855;  Deming  Inv.  Co.  v.  Echols,  (Arkv), 
183   S.  W.   165. 

An  unambiguous  conveyance,  complete  within  itself, 
signed  and  delivered,  cannot  be  shown  by  parol  to  be  con- 
ditional.—Lower  v.  Hickman,  80  Ark.  505,  97  S.  W.  681; 
Johnson  v.  Hughes,  83  Ark.  105,  103  S.  W.  184;  Collins  v. 
So.  Brick  Co.,  92  Ark.  504,  123  S.  W.  652;  American  Sales 
Book  Co.  v.  Whitaker,  100  Ark.  360,  140  S.  W.  132;  Good- 
rum  v.  Merchants'  &  P.  Bank,  102  Ark.  326,  144  S.  W.  198. 
California.  It  is  competent  to  show  a  parol  agreement 
that  a  note  should  become  binding  only  upon  the  per- 
formance of  a  condition  precedent,  and  that  the  condi- 
tion has  been  performed. — Howard  v.  Stratton,  64  Cal. 
487,   2   P.   263. 

Where  a  deed  is  lawfully  delivered  to  the  grantee  it 
cannot  be  shown  by  parol  that  it  was  to  become  effective 
only  upon  the  happening  of  a  contingency. — Mowry  v. 
Henry,  86  Cal.  471,  25  P.  17;  Bias  v.  Reed,  169  Cal.  33, 
145  P.  516. 

A  contemporaneous  oral  agreement  which  would  con- 
vert an  absolute  written  instrument  into  a  contingent  one 
cannot  be  shown. — Lompoc  Valley  Bank  v.  Stephenson,  156 
Cal.   350.   104   P.   449. 

Where  a  certificate  of  purchase  of  public  lands  is  as- 
signed in  writing,  parol  evidence  that  the  assignment  was 
conditional  is  inadmissible. — Albert  v.  Albert,  12  Cal.  App. 
268,  107  P.   156. 

Colorado.  Parol  evidence  is  admissible  to  show  that  lia- 
liability  under  a  written  instrument  was  to  attach  upon 
condition,— Bourke  v.  Van  Keuren,  20  Colo.  95,  36  P.  882; 
Norman  v.  McCarthy,  56  Colo.  290,  138  P.  28;  Sayre  v. 
Leonard,  57  Colo.  116,  140  P.  196;  Denver  Brewing  Co.  v. 
Barets,  9  Colo.  App.  341,  48  P.  834;  George  v.  Williams,  27 
Colo.  App.  400,  149  P.  837. 

Oral  testimony  is  admissible  to  show  the  condition  upon 
which  a   written   agreement   was   to   become   effective,   if 


DOCUMENTARY  EVIDENCE  659 

at  all.  So  in  an  action  on  a  note  it  may  be  shown  that 
the  note  was  only  given  in  order  that  it  might  be  pledged 
as  collateral  until  the  happening  of  a  contingency  and 
that  such  contingency  had  occurred. — Divine  v.  Western 
Slope  F.  G.  A.,  27  Colo.  App.  368,  149  P.  841,  and  cases 
cited. 

Kansas.  That  a  promissory  note  was  delivered  condi- 
tionally may  be  shown  by  parol. — White  v.  Smith,  79  Kan. 
96,   98   P.   766. 

The  existence  of  a  parol  agreement  that  a  written  in- 
strument should  become  effective  only  upon  the  happen- 
ing of  some  future  event  may  be  shown. — Bartholomew  v. 
Fell,  92  Kan.  64,  139  P.  1016. 

Montana.  Where  it  was  agreed  in  writing  that  collateral 
had  been  deposited  to  secure  the  payment  of  a  note,  and 
that  default  in  payment  authorized  the  payee  to  dispose 
of  the  collateral,  a  parol  agreement  that  the  collateral 
should  be  exhausted  before  suit  upon  the  note,  could  not 
be  shown.— Fisher  v.  Briscoe,  10  Mont.  124,  25  P.  30. 

Parol  evidence  of  an  agreement  that  the  acceptance  of  a 
bill  of  exchange  should  not  be  a  waiver  of  a  counterclaim 
which  the  acceptor  held  against  the  drawer,  is  admissible. 
— Bohn  Manufacturing  Co.  v.  Harrison,  13  Mont.  293,  34 
P.  313;    Bennett  v.  Tillmon,  18  Mont.  28,  44  P.  80. 

Nebraska.  A  contemporaneous  parol  agreement  that  a 
written  instrument  shall  not  be  binding  under  certain  con- 
tingencies may  be  shown  by  parol. — Norman  v.  Waite,  30 
Neb.  302.  46  N.  W.  639;  Davis  v.  Sterns,  85  Neb.  121,  122 
N.  W.  672;  First  Nat.  Bank  v.  Burney,  91  Neb.  269,  136 
N.  W.  37:  Musser  v.  Musser,  92  Neb.  387,  138  N.  W.  599; 
Exchange  Bank  v.  Clay  Center  State  Bank,  91  Neb.  835,  137 
N.   W.   845. 

Parol  evidence,  the  effect  of  which  would  be  to  change 
a  grant  in  a  deed  from  a  full  and  complete  conveyance 
to  one  upon  which  was  imposed  a  servitude,  is  inadmis- 
sible.—Mattison  v.  Chicago,  R.  I.  &  P.  R.  Co.,  42  Neb.  545, 
60  N.  W.  925. 

North  Dakota.  It  may  be  established  by  parol  that  a 
writing   was   delivered    conditionally,    to   take   effect   only 


660  DOCUMENTARY  EVIDENCE 

upon  the  happening  of  a  certain  event,  and  that  the  con- 
dition upon  which  it  was  to  become  operative  never  oc- 
curred.—First  State  Bank  v.  Kelly,  30  N.  D.  84,  152  N. 
W.  125. 

Oklahoma.  Parol  evidence  is  admissible  to  prove  that  the 
attaching  of  the  obligation  of  a  written  instrument  was 
upon  condition,  and  that  its  obligation  never  commenced. 
— Humphrey  v.  Timken  Carriage  Co.,  12  Okl.  413,  75  P. 
528;  Gamble  v.  Riley,  39  Okl.  363,  135  P.  390;  Jones  v.  Citi- 
zens' State  Bank,  39  Okl.  393,  135  P.  373;  Adams  v.  Thur- 
mond,  (Okl.),  149  P.  1141. 

A  parol  agreement  that  the  payment  of  a  note  shall  de- 
pend upon  the  happening  of  a  certain  event  is  to  be  dis- 
tinguished from  such  an  agreement  that  it  shall  not  be 
payable  in  any  event.  In  the  former  case  such  agreement 
may  be  proved,  but  in  the  latter  it  cannot.— Colbert  v. 
First  Nat.  Bank,  38  Okl.  391,  133  P.  206;  Adams  v.  Thur- 
mond, (Okl.),  149  P.  1141. 

Oregon.  Where  a  lease  of  certain  premises  complete 
within  itself  has  been  properly  executed  and  delivered,  it 
cannot  be  shown  by  parol  evidence  that  the  execution  of 
the  lease  was  conditioned  upon  the  alteration  of  a  fence 
so  that  the  tenants'  light  would  not  be  obscured  thereby. 
—Stoddard  v.  Nelson,  17  Or.  417,  21  P.  456. 

Parol  evidence  is  admissible  to  show  the  true  relations 
subsisting  between  the  parties  to  a  promissory  note  where 
contribution  is  sought,  and  that  the  liability  is  conditional. 
—Montgomery  v.  Page,  29  Or.  320,  44  P.  689. 

South  Dakota.  The  signing  and  delivery  of  a  written 
instrument  may  be  shown  by  parol  to  have  been  condi- 
tional.— McCormick  Harv.  Mach.  Co.  v.  Faulkner,  7  S.  D. 
363,  64  N.  W.  163;  Manufacturers'  Furnishing  Co.  v.  Kre- 
mer,  7  S.  D.  463,  64  N.  W.  528. 

Texas.  It  cannot  be  shown  by  parol  that  the  performance 
of  an  absolute  and  unconditional  contract  for  the  sale 
of  land  depended  upon  the  approval  of  the  title  by  a  cer- 
tain attorney.— Whitaker  v.  Willis,  (Tex.  Civ.  App.),  146 
S.  W.   1004. 


DOCUMENTARY  EVIDENCE  661 

It  may  be  shown  by  parol  testimony  that  it  was  agreed 
that  an  ordinary  promissory  note  should  be  payable  only 
upon  a  contingency. — Watson  v.  Rice,  (Tex.  Civ.  App.),  149 
S.  W.  106. 

But  where  a  note  is  payable  on  demand  its  terms  can 
not  be  so  varied.— Key  v.  Hickman,  (Tex.  Civ.  App.),  149 
S.  W.  275. 

That  a  bond  was  signed  conditionally  may  be  shown  by 
parol. — Francis  v.  Cornelius,  (Tex.  Civ.  App.),  173  S.  W. 
947. 

A  parol  agreement  that  a  written  instrument  should  be 
binding  only  upon  the  happening  of  some  future  event 
may  be  shown  by  oral  testimony,  but  not  where  the  instru- 
ment is  a  deed  or  trust  deed  delivered  to  the  grantee. — Far- 
rar  v.  Holt,  (Tex.  Civ.  App.),  178  S.  W.  618. 
Utah.  It  is  competent  to  show  a  parol  agreement  that  a 
note  should  become  binding  only  upon  the  performance 
of  a  condition  precedent,  and  that  the  condition  has  been 
performed.— Clark  v.  Ducheneau,  26  Utah  97,  72  P.  331; 
Martineau  v.  Hanson,  (Utah),  155  P.  432. 
Washington.  It  is  competent  to  show  by  parol  evidence 
that  a  note  was  to  become  a  binding  agreement  only  upon 
the  happening  of  a  certain  contingency,  and  that  such  con- 
tingency has  not  happened. — Ewell  v.  Turney,  39  Wash. 
615,  81  P.  1047;  Seattle  Nat.  Bank  v.  Becker,  74  Wash. 
431,  133  P.  613;   Gwinn  v.  Ford,  85  Wash.  571,  148  P.  891. 

That  a  deed  was  to  become  effective  only  upon  a  con- 
dition, cannot  be  shown  by  parol. — Sylvester  v.  State,  46 
Wash.  585,  91  P.  15. 

The  contract  of  accommodation  parties  to  a  note  rests 
in  parol  and  may  be  shown. — Handsaker  v.  Pedersen,  71 
Wash.   218,   128   P.   230. 

Wyoming.  It  may  be  shown  by  parol  that  a  note  was 
executed  and  delivered  upon  condition  that  it  should  not 
be  negotiated. — Holdsworth  v.  Blyth  &  Fargo  Co.,  23  Wyo. 
52,  146  P.  603. 

SUBSEQUENT    PAROL   AGREEMENT. 
Arkansas.     Proof  of  a  subsequent  parol  agreement  chang- 
ing the  terms  of  a  prior  written  contract  is  admissible. — 


662  DOCUMENTARY  EVIDENCE 

Von  Berg  v.  Goodman,  85  Ark.  605,  109  S.  W.  1006;  Brickey 
v.  Continental  Gin  Co.,  113  Ark.  15,  166  S.  W.  744. 
California.  A  subsequent  parol  agreement  may  be  es- 
tablished intended  to  abrogate,  and  in  lieu  of  the  prior 
written  instrument.— Pearsall  v.  Henry,  153  Cal.  314,  95 
P.  154. 

A  subsequent  unexecuted  parol  agreement  inconsistent 
with  the  terms  of  the  written  contract  cannot  be  engrafted 
upon  the  latter. — Broads  v.  Mead,  159  Cal.  765,  116  P.  46. 

Where  a  clause  in  a  contract  prescribing  a  method  of 
procedure  appears  to  have  been  disregarded  by  the 
parties,  a  subsequent  parol  agreement  to  follow  another 
method  may  be  shown  by  oral  testimony.— Reed  v.  McDon- 
ald,  22   Cal.   App.   701,   136   P.   506. 

A  subsequent  oral  agreement  to  waive  a  condition  of  a 
written  contract  may  be  shown  by  parol. — Seals  v.  Davis, 
25  Cal.  App.  68,  142  P.  905. 

Colorado.  Parol  evidence  is  admissible  to  establish  a  sub- 
sequent oral  modification  of  a  written  contract. — Hatch 
v.  Fritz,  48  Colo.  530,  111  P.  74;  Drescher  v.  Fulham,  11 
Colo.   App.   62,   52   P.   685. 

Montana.  Any  modification  of  a  written  contract,  unless 
executed,  must  be  in  writing.  An  oral  unexecuted  modifi- 
cation cannot  be  shown. — Curtis  v.  Freeman  &  Parham, 
49  Mont.  140,  140  P.  511. 

Nebraska.  A  written  contract  may  be  orally  proved  to 
have  been  modified  or  annulled  by  a  subsequent  parol 
agreement. — Fitzgerald  v.  Fitzgerald  &  Mallory  Const.  Co., 
41  Neb.  374,  59  N.  W.  838. 

Nevada.  An  executed  oral  agreement  made  subsequent 
to  the  written  mortgage  providing  for  the  delivery  of  the 
mortgaged  property  to  the  mortgagee  may  be  shown  where 
the  mortgage  is  silent  on  the  subject.— Douglass  v.  Thomp- 
son, 35  Nev.  196,  127  P.  561. 

North  Dakota.  An  explicit  contract  with  dependent  cove- 
nants to  convey  lands  on  one  part  and  to  pay  on  the  other, 
cannot  be  varied  by  evidence  that  it  was  subsequently 
modified  by  parol. — McCulloch  v.  Bauer,  24  N.  D.  109,  139 
N.  W.  318. 


DOCUMENTARY  EVIDENCE  663 

Oklahoma.  Parol  evidence  is  admissible  to  show  that  the 
time  of  payment  has  been  extended  by  a  subsequent  oral 
agreement.— Roe  v.  Fleming,  32  Okl.  259,   122  P.  496. 

A  written  contract  of  lease  of  a  machine  may  be  shown 
to  have  been  cancelled  by  proof  that  subsequently  the 
lessor  told  the  lessee  to  return  the  machine  if  unsatisfac- 
tory.—Finola  Mfg.  Co.  v.  Paulsen.  (Okl.),  151  P.  195. 
Oregon.  Parol  evidence  is  admissible  to  show  that  the 
time  of  performance  of  a  written  contract,  within  the 
statute  of  frauds,  has  been  enlarged  by  a  subsequent  oral 
agreement. — Condon  Nat.  Bank  v.  Rogers,  60  Or.  189,  118 
P.  846;    Scott  v.  Hubbard,  67  Or.  498,  136  P.  653. 

A  written  agreement,  except  when  prohibited  by  posi- 
tive law,  may  be  modified  or  annulled  by  a  subsequent 
valid  oral  agreement,  which  may  be  shown  by  parol  evi- 
dence—City  Messenger  &  D.  Co.  v.  Postal  Tel.  Co.,  74 
Or.  433,  145  P.  657. 

A  subsequent  oral  agreement  by  an  indorser  to  attend 
to  the  collection  of  the  note  endorsed  may  be  proved  by 
parol.— Moll  v.  Roth  Co.,  77  Or.  593,  152  P.  235. 

Texas.  A  subsequent  parol  agreement  abrogating  the 
written  contract  may  be  shown. — Bradshaw  v.  Davis,  12 
Tex.  354;  Lone  Star  Canal  Co.  v.  Broussard,  (Tex.  Civ. 
App.).   176  S.  W.  649. 

Where  an  action  is  based  upon  a  written  contract  and 
a  subsequent  oral  one,  proof  of  the  latter  is  competent. 
— Barnard  &  Moran  v.  Williams.  (Tex.  Civ.  App.),  166 
S.    W.  910. 

A  written  contract  authorizing  a  broker  only  to  sell 
lands  may  be  shown  to  have  been  modified  by  parol  agree- 
ment authorizing  him  to  exchange. — Williams  v.  Phelps, 
(Tex.   Civ.  App.),   171  S.  W.  1100. 

Utah.  A  written  contract  may  be  shown  to  have  been 
varied  by  a  separate  subsequent  parol  agreement. — Pod- 
lech  v.  Phelan,  13  Utah  333,  44  P.  838. 

A  written  partnership  agreement,  as  between  the  part- 
ners may  be  subsequently  modified  by  parol. — Morgan  v. 
Child,  Cole  &  Co.,    (Utah),  155  P.  451. 


664  DOCUMENTARY  EVIDENCE 

Washington.  Where  the  written  insurance  policy  covering 
a  vessel  restricted  her  to  certain  waters,  subsequent  parol 
permission  may  be  shown  to  have  been  given  her  to  go 
outside  the  limits  without  invalidating  the  insurance. — 
Norris  v.  China  Traders'  Ins.  Co.,  52  Wash.  554,  100  P. 
1025. 

A  subsequent  parol  agreement  fixing  the  time  of  com- 
mencement of  the  term  of  a  lease  may  be  shown  by  parol, 
where  the  exact  date  is  not  fixed  by  the  writing. — Man- 
veil  v.  Weaver,  53  Wash.  408,  102  P.  36. 

Where  the  written  contract  fixes  no  time  for  perform- 
ance, the  law  implies  a  reasonable  time,  and  evidence  of 
what  would  be  a  reasonable  time  is  admissible,  but  proof 
of  a  subsequent  verbal  agreement  to  extend  the  time  in- 
definitely, is  inadmissible. — Smith  Sand  &  G.  Co.  v.  Cor- 
bin,  89  Wash.   43,   154  P.   150. 

Wyoming.  A  subsequent  parol  agreement  on  good  con- 
sideration may  be  shown  by  parol  to  have  been  entered 
into  by  the  parties,  where  the  original  writing  is  ap- 
parently incomplete. — George  v.  Emery,  18  Wyo.  352, 
107  P.  1. 

CUSTOM  OR  USAGE. 

Arkansas.  It  is  not  permissible  to  prove  a  custom  or 
usage  tending  to  vary  the  terms  of  the  written  agreement. 
— Runyan  v.  Runyan,  101  Ark.  353,  142  S.  W.  519;  Paepcke- 
Leicht  Lumber  Co.  v.  Talley,  106  Ark.  400,  153  S.  W.  833. 
It  was  held  permissible  to  show  a  general  custom  of  a 
carrier  to  deliver  freight  in  carloads  by  spotting  the  cars 
on  a  spur  track,  though  the  bill  of  lading  only  called  for 
delivery  at  the  station. — Arkansas  Midland  R.  Co.  v.  Pre- 
mier Cotton   Mills,    109   Ark.   218,   158    S.   W.   148. 

California.  Where  the  method  of  procedure  rests  in  gen- 
eral usage  and  is  not  provided  for  in  the  written  contract 
it  may  be  proved. — Gonyer  v.  Williams,  168  Cal.  452,  143 
P.  736. 

Proof  of  custom  or  usage  will  not  be  allowed  to  vary  the 
terms  of  a  writing. — Holloway  v.  McNear,  81  Cal.  154,  22 
P.  514;   Fish  v.  Correll,  4  Cal.  App.  521,  88  P.  489. 


DOCUMENTARY  EVIDENCE  665 

Where  the  written  contract  is  silent  upon  the  subject, 
parol  evidence  of  the  existence  of  a  custom  or  usage  bear- 
ing upon  the  omitted  part  is  admissible. — Puritas  Laundry 
Co.  v.  Green,  15  Cal.  App.  t>54,  115  P.  660;  Corey  v.  Struve, 
16  Cal.  App.  310,  116  P.  975. 

Colorado.  Evidence  of  custom  may  be  resorted  to  for  the 
purpose  of  ascertaining  the  meaning  and  intent  of  the 
parties  to  a  contract  where  the  terms  employed  are  gen- 
eral.—Heistand  v.   Bateman,   41   Colo.   20,   91  P.   1111. 

It  is  not  allowable  to  prove  a  custom  or  usage  which  will 
vary  the  written  terms. — First  Nat.  Bank  v.  Londonderry 
Min.  Co.,  50  Colo.   85,   114  P.  313. 

Kansas.     Testimony  may  be  introduced  tending  to  prove 
^a  customary  method  of  procedure  under  a  written  contract 
which  is  silent  or  ambiguous  on  the  subject. — Smythe  v. 
Parsons,  37  Kan.  79,  14  P.  444. 

Proof  of  custom  cannot  be  the  means  of  annexing  new 
terms  to  a  contract. — McSherry  v.  Blanchfield,  68  Kan. 
310,  75  P.  121;  Eckhardt  v.  Taylor,  90  Kan.  698,  136  P. 
218;  Atkinson  v.  Kirkpatrick,  90  Kan.  515,  135  P.  579. 

Montana.  Where  a  writing  is  silent  custom  may  be 
proved  as  to  time  of  payment. — Hayes  v.  Union  Merc.  Co., 
27  Mont.  264,  70  P.  975. 

Nebraska.  Proof  of  custom  is  not  admissible  where  the 
terms  of  a  written  contract  are  definite. — American  B.  & 
L.  Ass'n  v.  Mordock,  39  Neb.  413,  58  N.  W.  107. 

Oklahoma.  Where  a  written  instrument  is  silent  on  the 
subject,  parol  evidence  of  custom  or  usage  is  admissible. 
—Moore  v.  Coughlin,  36  Okl.  252,  128  P.  257. 

Oregon.  Proof  of  custom  or  usage  is  not  admissible  to 
give  an  interpretation  to  a  contract  inconsistent  with  its 
language,  but  when  the  writing  is  silent  the  custom  may 
be  proved. — McClusky  v.  Klosterman,  20  Or.  108,  25  P. 
366;    Savage  v.  Salem  Mills  Co.,   48   Or.  1,  85  P.   69. 

The  terms  of  a  written  instrument  cannot  be  varied  by 
proof  of  custom  or  usage. — Manerud  v.  City  of  Eugene, 
62  Or.  196,  124  P.  662;  Barnard  v.  Bunker  &  Houser,  68 
Or.  240,  137  P.  227. 


666  DOCUMENTARY  EVIDENCE 

Texas.  Where  a  contract  for  the  transportation  of  freight 
provided  for  its  delivery  at  a  certain  city,  evidence  that 
it  was  the  general  custom  of  carriers  to  deliver  freight  of 
that  character  at  the  stockyards  in  a  suburb  of  such  city 
was  admissible. — Houston  &  T.  C.  R.  Co.  v.  Hill,  (Tex. 
Civ   App.),  128  S.  W.  445. 

When  consistent  with  the  terms  of  a  writing,  a  custom 
or  usage  that  presumably  entered  into  the  contemplation 
of  the  contracting  parties  may  be  shown. — Standard  Paint 
Co.  v.  San  Antonio  Hardware  Co.,  (Tex.  Civ.  App.),  136 
S.  W.  1150;  Bowles  v.  Driver,  (Tex.  Civ.  App.),  112  S.  W. 
440. 

Proof  of  a  custom  that  would  vary  the  terms  of  a  writ- 
ten contract  is  not  admissible. — Rhome  Milling  Co.  v. 
Cunningham,  (Tex.  Civ.  App.),  171  S.  W.  1081. 
Utah.  Parol  proof  is  sometimes  competent  to  annex  to 
a  contract  a  usage,  when  such  usage  does  not  conflict  with 
the  express  terms  of  the  contract. — Sharp  v.  Clark,  13 
Utah  510,  45  P.  566. 

Washington.  Proof  of  a  custom  cannot  contradict  a  writ- 
ten contract,  but  may  be  admitted  to  explain  its  meaning. 
— Bardwell  v.  Ziegler,  3  Wash.  34,  28  P.  360. 

LEGAL  EFFECT  NOT  INTENDED. 
Idaho.  Where  the  writing  is  a  mere  informal  memoran- 
dum, manifestly  incomplete  on  its  face,  not  intended  to 
exhibit  the  whole  agreement,  but  merely  to  define  some 
of  its  terms,  parol  evidence  may  supply  the  deficiencies. 
— Jarrett  v.  Prosser,  23  Ida.  382,  130  P.  376. 

Nebraska.  Where  a  memorandum  is  in  terms  a  confirma- 
tion of  a  previous  oral  agreement,  such  agreement  may  be 
shown  by  parol. — De  Laval  Separator  Co.  v.  Jelinek,  77 
Neb.  192,  109  N.  W.  169. 

Oregon.  Where  the  agreement  rested  in  parol,  that  its 
terms  were  discussed  in  letters  and  telegrams  did  not  ex- 
clude proof  of  the  agreement  by  parol  evidence. — Mahon 
v.  Rankin,  54  Or.  328,  103  P.  53. 

A  writing  drawn  up  for  some  other  purpose  than  a  final 
and  complete  repository  of  the  agreement  is  not  the  sub- 


DOCUMENTARY  EVIDENCE  667 

ject  of  the  rule  excluding  parol  evidence  varying  or  con- 
tradicting a  written  instrument. — Bouchet  v.  Oregon 
Motor  Car  Co.,  78  Or.  230,  152  P.  888. 
Texas.  Where  a  part  of  the  transaction  has  been  em- 
bodied in  a  writing  intended  not  to  be  complete,  parol 
evidence  may  supply  the  deficiencies. — Swope  v.  Liberty 
County  Bank.  52  Tex.  Civ.  App.  281,  113  S.  W.  976. 
Utah.  A  mere  memorandum  of  a  contract  intended  to  be, 
but  not  reduced  to  writing  is  not  exclusive  evidence  of 
such  contemplated  agreement. — Halverson  v.  Walker,  38 
Utah  264,  112  P.  804. 

Washington.  Where  a  memorandum  agreement  shows 
only  the  preliminaries  of  the  contract,  and  is  not  intended 
to  be  complete,  the  whole  transaction  may  be  explained  by 
parol  evidence. — Roebling's  Sons  Co.  v.  Washington  Alaska 
Bank,   56  Wash.   102,  105  P.   174. 

TO   EXPLAIN    LEGAL   RELATION. 
Arizona.     Parol  evidence  is  inadmissible  to  show  that  a 
party  is  liable  on  a  negotiable  instrument  who  does  not 
appear  to  be  so  from  the  instrument  itself. — Richards  v. 
Warnekros,  14  Ariz.  488,  131  P.  154. 

California.  Where  a  bond  given  in  connection  with  a 
mortgage,  was  on  its  fact  the  personal  obligation  of  the 
parties  signing  it.  extrinsic  evidence  of  their  official  char- 
acter or  of  their  intentions  is  inadmissible  for  the  purpose 
of  showing  it  to  be  the  bond  of  a  corporation. — Richardson 
v.  Scott   River  \V.   &   M.  Co.,  22  Cal.  150. 

Parol  evidence  is  not  admissible  on  behalf  of  a  third 
party  to  prove  who  are  the  real  parties  to  a  written  con- 
tract.—Ellis  v.  Crawford,  39  Cal.   523. 

Parol  evidence  is  not  admissible  to  contradict  a  deed 
by  showing  that  the  trustee  and  not  the  cestui  que  trust 
was  intended  as  the  beneficiary. — Young  America  Eng.  Co. 
v.  City  of  Sacramento.  47  Cal.  594. 

Parol  evidence  is  admissible  to  show  that  a  writing  was 
signed  by  an  agent  of  a  third  party  whose  name  did  not 
appear  in  the  instrument. — Otten  v.  Spreckles,  24  Cal. 
App.  251.  141  P.  224. 


668  DOCUMENTARY  EVIDENCE 

Colorado.  A  contract  executed  by  individuals  may  be 
shown  by  parol  testimony  to  be  the  contract  of  a  corpora- 
tion and  that  it  is  bound  thereby. — Williams  v.  Uncom- 
pahgre  Canal  Co.,  13  Colo.  469,  22  P.  806. 

Proof  of  a  parol  contract  to  purchase  lands  is  not  ex- 
cluded by  the  execution  of  a  deed  intended  to  carry  out 
the  contract,  and  it  may  be  shown  by  parol  evidence  that 
the  actual  purchaser  of  the  lands  was  other  than  the 
grantee  named  in  the  deed. — Davis  v.  Hopkins,  18  Colo. 
153,   32  P.  70. 

Kansas.  Parol  testimony  is  admissible  to  show  that  one 
or  both  of  the  contracting  parties  to  a  written  contract 
were  agents  of  other  persons,  and  acted  as  such  in  mak- 
ing the  contract,  so  as  to  give  the  benefits  thereof  to,  or  to 
charge  thereby,  an  unnamed  principal. — Nutt  v.  Humph- 
rey, 32  Kan.   100,  3  P.   787. 

The  existence  of  facts  upon  which  the  authority  of  the 
officer  to  execute  a  deed  to  a  person  other  than  the  pur- 
chaser at  a  judicial  sale,  may  be  shown  by  parol  evidence 
where  the  recitals  of  the  instrument  do  not  disclose  the 
facts.— Austin  v.  Ballard,  84  Kan.  619,  114  P.  1084. 

Parol  testimony  is  admissible  to  show  that  a  note  is 
the  obligation  of  a  corporation  and  not  of  the  parties  exe- 
cuting it. — Western  Grocery  Co.  v.  Lackman,  75  Kan.  34, 
88  P.  527. 

Nevada.  Where  there  is  anything  on  the  face  of  a  note 
or  bill  of  exchange  showing  that  the  party  signing  it  was 
acting  for  another,  and  not  for  himself,  parol  testimony 
may  be  introduced  to  bind  the  principal. — Gillig,  Mott  & 
Co.  v.  Bigler  Road  Co.,  2  Nev.  214. 

Oklahoma.  Parol  evidence  is  admissible  to  show  that  the 
principal  is  the  real  party  in  interest,  in  a  suit  by  him 
on  a  written  contract  executed  by  another  as  his  agent, 
though  the  agency  is  not  disclosed  by  the  writing. — Ran- 
kin v.  Blaine  County  Bank,  20  Okl.  68,  93  P.  536. 

Oregon.  It  may  be  shown  by  parol  testimony  that  a  party 
who  executed  a  written  agreement  was  acting  as  agent 
for  another  in  so  doing,  but  the  agent  does  not  thus  escape 
liability.— Barbre  v.  Goodale,  28  Or.  465,  43  P.  378. 


DOCUMENTARY  EVIDENCE  669 

Where  a  written  contract  purports  to  be  the  contract 
of  one,  it  may  be  shown  by  parol  that  others  are  also 
parties  to  it.— Riddle  State  Bank  v.  Link,  78  Or.  498,  153 
P.  1192. 

Such  evidence  is  not  excluded  by  the  statute  of  frauds. 
— Flegel  v.  Dowling,  54  Or.  40,  102  P.  178. 
South  Dakota.  Evidence,  in  the  absence  of  fraud,  is  in- 
admissible to  vary,  change  or  qualify  the  terms  of  a  writ- 
ten contract  appearing  upon  its  face  to  be  executed  by 
a  party  as  principal,  by  showing  that  such  party  was  act- 
ing as  agent  of  other  parties  to  the  contract,  as  between 
the  parties  to  the  contract. — Black  Hills  Nat.  Bank  v. 
Kellogg,   4   S.   D.   312,    56   N.  W.    1071. 

Texas.  In  a  written  contract  not  negotiable  it  can  be 
shown  by  parol  evidence  that,  although  signed  in  the  name 
of  the  agent  only,  it  was  executed  in  the  business  of  the 
principal,  and  with  intent  to  bind  him. — Butler  v.  Mer- 
chant,   (Tex.   Civ.  App.),   27   S.  W.   193. 

That  a  house  standing  upon  a  lot  which  was  conveyed 
by  deed  was  the  property  of  a  stranger  to  the  deed,  and 
that  it  was  not  intended  to  be  conveyed,  may  be  shown 
by  oral  testimony. — Clayton  v.  Phillipp,  (Tex.  Civ.  App.), 
159   S.  W.   117. 

Washington.  It  may  be  shown  by  parol  testimony  that  a 
written  contract,  executed  by  a  party  in  his  own  name, 
was  executed  in  a  representative  capacity. — Brewster  v. 
Baxter,  2  Wash.  135,  3  P.  844. 

The  legal  relations  of  parties  to  a  suit  may  be  proved 
by  parol  testimony,  notwithstanding  a  written  contract 
does  not  disclose  the  relationship. — Hull  v.  Seattle,  R.  & 
S.  Ry.  Co.,  60  Wash.  162,  110  P.  804. 

Wyoming.  Where  a  written  authority  is  given  for  a  cer- 
tain purpose,  it  is  proper  to  show  by  extrinsic  evidence 
that  a  different  authority  from  another  principal  was  given 
by  parol. — Lonabaugh  v.  Morrow,  11  Wyo.  17,  70  P.  724. 

TITLE  TO   OFFICE. 
The  title  of  a  person  who  has  assumed  to  act  as  a  de 
facto  officer  cannot  be  attacked  by  parol  and  where  the 
matter  is  not  directly  in  issue. — James  v.  State,  41  Ark. 


670  DOCUMENTARY  EVIDENCE 

451;  Tanner  v.  State,  116  Ark.  452,  173  S.  W.  200;  Delphi 
School  Dist.  v.  Murray,  53  Cal.  29;  Willis  v.  Sproule,  13 
Kan.  257;  State  v.  Nield,  4  Kan.  App.  626,  45  P.  623;  Bree- 
den  v.  Martens,  21  S.  D.  357,  112  N.  W.  960;  Biencourt  v. 
Parker,  27  Tex.  558;  Stooksberry  v.  Swann,  12  Tex.  Civ. 
App.  66,  34  S.  W.  369. 

COLLATERAL   MATTERS. 

California.  In  a  prosecution  for  arson,  that  the  property 
destroyed  carried  insurance,  and  the  aggregate  amount 
thereof,  may  be  proved  by  parol  without  the  production  of 
the  insurance  policy. — People  v.  Goldsworthy,  130  Cal.  600, 
62  P.  1074. 

Utah.  Parol  evidence  may  be  given  of  the  contents  of  a 
writing  collateral  to  the  issue. — Johnson  v.  Union  Pacific 
R.  Co.,  35  Utah  285,  100  P.  390. 

NOTE   XXXII. 
(To  Article  90.) 

The  distinction  between  this  and  the  following  article  is, 
that  article  90  defines  the  cases  in  which  documents  are  ex- 
clusive evidence  of  the  transactions  which  they  embody, 
while  article  91  deals  with  the  interpretation  of  documents 
by  oral  evidence.  The  two  subjects  are  so  closely  connected 
together,  that  they  are  not  usually  treated  as  distinct;  but 
they  are  so  in  fact.  A  and  B  make  a  contract  of'  marine 
insurance  on  goods,  and  reduce  it  to  writing.  They  verbally 
agree  that  the  goods  are  not  to  be  shipped  in  a  particular 
ship,  though  the  contract  makes  no  such  reservation.  They 
leave  unnoticed  a  condition  usually  understood  in  the  busi- 
ness of  insurance  and  they  make  use  of  a  technical  expres- 
sion, the  meaning  of  which  is  not  commonly  known.  The 
law  does  not  permit  oral  evidence  to  be  given  of  the  excep- 
tion as  to  the  particular  ship.  It  does  permit  oral  evidence 
to  be  given  to  annex  the  condition;  and  thus  far  it  decides 
that  for  one  purpose  the  document  shall,  and  that  for  an- 
other it  shall  not,  be  regarded  as  exclusive  evidence  of  the 
terms  of  the  actual  agreement  between  the  parties.  It  also 
allows  the  technical  term  to  be  explained,  and  in  doing  so 
it  interprets  the  meaning  of  the  document  itself.  The  two 
operations  are  obviously  different,  and  their  proper  perform- 
ance depends  upon  different  principles.  The  first  depends 
upon  the  principle  that  the  object  of  reducing  transactions 
to  a  written  form  is  to  take  security  against  bad  faith  or 
bad   memory,   for  which   reason   a  writing   is   presumed  as  a 


DOCUMENTARY  EVIDENCE  671 

general  rule  to  embody  the  final  and  considered  determina- 
tion of  the  parties  to  it.  The  second  depends  on  a  considera- 
tion of  the  imperfections  of  language,  and  of  the  inadequate 
manner  in  which  people  adjust  their  words  to  the  facts  to 
which   they   apply. 

The  rules  themselves  are  not,  I  think,  difficult  either  to 
state,  to  understand,  or  to  remember;  but  they  are  by  no 
means  easy  to  apply,  inasmuch  as  from  the  nature  of  the 
case  an  enormous  number  of  transactions  fall  close  on  one 
side  or  the  other  of  most  of  them.  Hence  the  exposition 
of  these  rules,  and  the  abridgment  of  all  the  illustrations 
of  them  which  have  occurred  in  practice,  occupy  a  very  large 
space  in  the  different  text  writers.  They  will  be  found  in 
2  Ph.  Ev.  332-424;  T.  E.  ss.  1031-1110;  Star.  648-731;  Best 
(very  shortly  and  imperfectly),  ss.  226-229;  R  N.  P.  (an 
immense   list  of   cases)    17-35. 

As  to  paragraph  (4),  which  is  founded  on  the  case  of  Goss 
v.  Lord  Nugent,  it  is  to  be  observed  that  the  paragraph  is 
purposely  so  drawn  as  not  to  touch  the  question  of  the  effect 
of  the  Statute  of  Frauds.  It  was  held  in  effect  in  Goss  v. 
Lord  Nugent  that  if  by  reason  of  the  Statute  of  Frauds  the 
substituted  contract  could  not  be  enforced,  it  would  not  have 
the  effect  of  waiving  part  of  the  original  contract;  but  It 
seems  the  better  opinion  that  a  verbal  rescission  of  a  con- 
tract good  under  the  Statute  of  Frauds  would  be  good.  See 
Noble  v.  Ward,  L.  R.  2  Ex.  135,  and  Pollock  on  Contracts, 
411,  note  (6).  A  contract  by  deed  can  be  released  only  by 
deed,  and  this  case  also  would  fall  within  the  proviso  to 
paragraph     (4). 

The  cases  given  in  the  illustrations  will  be  found  to  mark 
Sufficiently  the  various  rules  stated.  As  to  paragraph  (5)  a 
Uction  of  cases  will  be  found  in  the  notes  to 
Wigglesworth  v.  Dallison,  1  S.  L.  C.  598-628,  but  the  con- 
sideration of  them  appears  to  belong  rather  to  mercantile 
law  than  to  the  Law  of  Evidence.  For  instance,  the  question 
what  Btipulations  are  consistent  with,  and  what  are  contra- 
dictory to,  the  contract  formed  by  subscribing  a  bill  of  ex- 
change, or  (lie  contract  between  an  insurer  and  an  under- 
writer, are   not   questions  of   the    Law   of   Evidence. 


672  DOCUMENTARY  EVIDENCE 

Article  91.* 

what  evidence   may  be  given  for  the   interpretation  of 
documents. 

(1)  Putting  a  construction  upon  a  document 
means  ascertaining  the  meaning  of  the  signs  or 
words  made  upon  it,  and  their  relation  to  facts. 

(2)  In  order  to  ascertain  the  meaning  of  the 
signs  and  words  made  upon  a  document,  oral  evi- 
dence may  be  given  of  the  meaning  of  illegible  or 
not  commonly  intelligible  characters,  of  foreign, 
obsolete,  technical,  local,  and.  provincial  expres- 
sions, of  abbreviations,  and  of  common  words 
which,  from  the  context,  appear  to  have  been  used 
in  a  peculiar  sense;  (a)  but  evidence  may  not  be 
given  to  show  that  common  words,  the  meaning 
of  which  is  plain,  and  which  do  not  appear  from 
the  context  to  have  been  used  in  a  peculiar  sense, 
were  in  fact  so  used,  (b) 

(3)  If  the  words  of  a  document  are  so  defec- 
tive or  ambiguous  as  to  be  unmeaning,  no  evi- 
dence can  be  given  to  show  what  the  author  of 
the  document  intended  to  say.  (c) 

(4)  In  order  to  ascertain  the  relation  of  the 
words  of  a  document  to  facts,  every  fact  may  be 
proved  to  which  it  refers,  or  may  probably  have 
been  intended  to  refer,    (d)    or  which  identifies 


(a)  Illustrations    (a),    (b),    (c). 

(b)  Illustration    (d);    [4    Wigmore    Ev„    §    2462];    Keller    v. 
Webb,   125  Mass.   88. 

(c)  Illustrations    (e)    and    (f);    [4   Wigmore   Ev.(    §    2462]. 

(d)  See  all  the  illustrations;   [4  Wigmore  Ev.,  §§  2461-2467.] 

*See  note  at  end  of  article. 


DOCUMENTARY  EVIDENCE  673 

any  person  or  thing  mentioned  in  it.  (e)  Such 
facts  are  hereinafter  called  the  circumstances  of 
the  case,  (f ) 

(5)  If  the  words  of  a  document  have  a  proper 
legal  meaning,  and  also  a  less  proper  meaning, 
they  must  be  deemed  to  have  their  proper  legal 
meaning,  unless  such  a  construction  would  be  un- 
meaning in  reference  to  the  circumstances  of  the 
case,  in  which  case  they  may  be  interpreted  ac- 
cording to  their  less  proper  meaning,  (g) 

(6)  If  the  document  has  one  distinct  meaning 
in  reference  to  the  circumstances  of  the  case,  it 
must  be  construed  accordingly,  and  evidence  to 
show  that  the  author  intended  to  express  some 
other  meaning  is  not  admissible,   (h) 

(7)  If  the  document  applies  in  part  but  not 
with  accuracy  to  the  circumstances  of  the  case, 
the  Court  may  draw  inferences  from  those  cir- 
cumstances as  to  the  meaning  of  the  document, 
whether  there  is  more  than  one,  or  only  one  thing 
or  person  to  whom  or  to  which  the  inaccurate  de- 
scription may  apply.  In  such  cases  no  evidence 
can  be  given  of  statements  made  by  the  author  of 
the  document  as  to  his  intentions  in  reference  to 
the  matter  to  which  the  document  relates,  though 
evidence  may  be  given  as  to  his  circumstances, 


(e)  Illustration    (g). 

(f)  As  to  proving  facts  showing  the  knowledge  of  the 
writer,  and  for  an  instance  of  a  document  which  is  not  admis- 
sible for  that  purpose,  see  Adie  v.  Clark,  L.  R.  3  Ch.  Div. 
134,  142. 

(g)  Illustration    (h). 

(h)    Illustration    (i);    [4   Wigmore  Ev„   §    2462]. 


674  DOCUMENTARY  EVIDENCE 

and  as  to  his  habitual  use  of  language  or  names 
for  particular  persons  or  things,  (i) 

(8)  If  the  language  of  the  document,  though 
plain  in  itself,  applies  equally  well  to  more  objects 
than  one,  evidence  may  be  given  both  of  the  cir- 
cumstances of  the  case  and  of  statements  made 
by  any  party  to  the  document  as  to  his  intentions 
in  reference  to  the  matter  to  which  the  document 
relates,   (j) 

(9)  If  the  document  is  of  such  a  nature  that  the 
Court  will  presume  that  it  was  executed  with  any 
other  than  its  apparent  intention,  evidence  may  be 
given  to  show  that  it  was  in  fact  executed  with 
its  apparent  intention,   (k) 

Illustrations. 

(a)  A  lease  contains  a  covenant  as  to  "ten  thousand"  rab- 
bits. Oral  evidence  to  show  that  a  thousand  meant,  in  rela- 
tion to  rabbits,   1200,   is  admissible.i 

(b)  A  sells  to  B  "1170  bales  of  gambier."  Oral  evidence  is 
admissible  to  show  that  a  "bale"  of  gambier  is  a  package 
compressed,   and   weighing    2    cwt.2 

(c)  A,  a  sculptor,  leaves  to  B  "all  the  marble  in  the  yard, 
the  tools  in  the  shop,  bankers,  mod  tools  for  carving."  Evi- 
dence to  show  whether  "mod"  meant  models,  moulds,  or  mod- 
elling-tools,  and  to  show  what  bankers  are,  may  be   given. 

(d)  Evidence  may  not  be  given  to  show  that  the  word 
"boats,"  in  a  policy  of  insurance,  means  "boats  not  slung  on 
the  outside  of  the  ship  on   the  quarter."3 

(e)  A  leaves  an  estate  to  K,  L,  M,  etc.,  by  a  will  dated 
before  1838.  Eight  years  afterwards  A  declares  that  by 
these  letters  he  meant  particular  persons.  Evidence  of  this 
declaration  is  not  admissible.     Proof  that  A  was  in  the  habit 

(i)    Illustrations    (k),    (1),    (m);    [4    Wigmore   Ev.,    §    2466]. 
(j)    Illustrations    (n),    (o);    [4   Wigmore   Ev.,    §    2462]. 
(k)    Illustration    (p);    [4   Wigmore  Ev.,    §   2466  et  seq.]. 
iSmith  v.   Wilson,   3   B.  &  Ad.   728. 
2Gorrissen  v.   Perrin,   2   C.   B.   n.    s.    681. 
3Blackett  v.  Royal  Exchange  Co.,   2  C.  &  J.   244. 


DOCUMENTARY  EVIDENCE  675 

of    calling   a   particular    person    M    would   have    been    admis- 
sible.4 

(f)  A  leaves  a  legacy   to  .      Evidence  to  show  how   the 

blank  was   intended  to   be   filled   is  not  admissible.5 

(g)  Property  was  conveyed  in  trust  in  1704  for  the  sup- 
port of  "Godly  preachers  of  Christ's  holy  Gospel."  Evidence 
may  be  given  to  show  what  class  of  ministers  were  at  the 
time    known    by    that   name.6 

(h)  A  leaves  property  to  his  "children."  If  he  has  both 
legitimate  and  illegitimate  children  the  whole  of  the  prop- 
erty will  go  to  the  legitimate  children.  If  he  has  only  ille- 
gitimate children,  the  property  may  go  to  them,  if  he  can- 
not have   intended   to   give   it   to   unborn   legitimate   children.7 

(i)  A  testator  leaves  all  his  estates  in  the  county  of  Lim- 
erick and  city  of  Limerick  to  A.  He  had  no  estates  in  the 
county  of  Limerick,  but  he  had  estates  in  the  county  of 
Clare,  of  which  the  will  did  not  dispose.  Evidence  cannot 
be  given  to  show  that  the  words  "of  Clare"  had  been  erased 
from  the  draft  by  mistake,  and  so  omitted  from  the  will  as 
executed.8 

(j)  A  leaves  a  legacy  to  "Mrs.  and  Miss  Bowden."  No  such 
persons  were  living  at  the  time  when  the  legacy  was  made, 
but  Mrs.  Washburne,  whose  maiden  name  had  been  Bowden, 
was  living,  and  had  a  daughter,  and  the  testatrix  used  to 
call   them   Bowden.     Evidence  of  these  facts   was  admitted.9 

(k)  A  devises  land  to  John  Hiscocks,  the  eldest  son  of 
John  Hiscocks.  John  Hiscocks  had  two  sons,  Simon,  his 
eldest,  and  John,  his  second  son,  who,  however,  was  the 
eldest  son  by  a  second  marriage.  The  circumstances  of  the 
family,  but  not  the  testator's  declarations  of  intention,  may 
be  proved  in  order  to  show  which  of  the  two  was  intended. io 

(1)  A  devises  property  to  Elizabeth,  the  natural  daughter 
of  B.  B  has  a  natural  son  John,  and  a  legitimate  daughter 
Elizabeth.  The  court  may  infer  from  the  circumstances 
under  which  the  natural  child  was  born,  and  from  the  tes- 
tator's relationship  to  the  putative  father,  that  he  meant  to 
provide  for  John.u 

(m)  A  leaves  a  legacy  to  his  niece,  Elizabeth  Stringer.  At 
the  date  of  the  will  he  had  no  such  niece,  but  he  had  a  great- 
great-niece    named    Elizabeth    Jane   Stringer.      The   court   may 

■iciayton  v.   Lord    Nugent,    1  :s   M.  &  W.   200;   see  205-206. 

sBaylis  v.  A.   <;.,    L'   Atk.   239. 

•'.Shore    v.    Wilson,    9    C.    &    F.    365,    565-566. 

7Wig.   Ext.    Ev.,  pp.   18,   lit,  and  note  of  cases. 

*  .Miller  v.   Travels.   8   Bing.   244. 

"1,ee    v.    Pain,    4    Hare.    961-263. 

lODoe  v.  Hiscocks,   5   M.   &  W.   363. 

llRyall   v.   Hannam,   10   Beav.   536. 


676  DOCUMENTARY  EVIDENCE 

infer  from  these  circumstances  that  Elizabeth  Jane  Stringer 
was  intended;  but  they  may  not  refer  to  instructions  given 
by  the  testator  to  his  solicitor,  showing  that  the  legacy  was 
meant  for  a  niece,  Elizabeth  Stringer,  who  had  died  before 
the  date  of  the  will,  and  that  it  was  put  into  the  will  by  a 
mistake  on  the  part  of  the  solicitor.12 

(n)  A  devises  one  house  to  George  Gord,  the  son  of  George 
Gord,  another  to  George  Gord  the  son  of  John  Gord,  and  a 
third  to  George  Gord  the  son  of  Gord.  Evidence  both  of 
circumstances  and  of  the  testator's  statements  of  intention 
may  be  given  to  show  which  of  the  two  George  Gords  he 
meant.  13 

(o)  A  appointed   "Percival  of   Brighton,   Esquire,   the 

father,"  one  of  his  executors.  Evidence  of  surrounding  cir- 
cumstances may  be  given  to  show  who  was  meant,  and 
(probably)   evidence  of  statements  of  intention. 14 

(p)  A  leaves  two  legacies  of  the  same  amount  to  B,  as- 
signing the  same  motive  for  each  legacy,  one  being  given  in 
his  will,  the  other  in  a  codicil.  The  court  presumes  that 
they  are  not  meant  to  be  cumulative,  but  the  legatee  may 
show,  either  by  proof  of  surrounding  circumstances,  or  of 
declarations  by  the  testator,  that  they  were.is 

INTERPRETATION   OF   DOCUMENTS. 

If  a  contract  is  not  all  in  writing  and  the  written  por- 
tion is  vague,  oral  testimony  is  admissible  to  determine 
what  the  contract  is.— Peters  v.  McVey,  59  Kan.  775,  52  P. 
896. 

MEANING  OF  WORDS  OR  TERMS. 

Arkansas.  The  meaning  of  the  term  "wholesale  cost"  is 
not  free  from  obscurity,  and  is  to  some  extent  ambiguous, 
making  it  necessary  to  look  to  the  surrounding  circum- 
stances to  determine  what  the  parties  really  meant  — 
Finn  v.  Culberhouse,  105  Ark.  197,  150  S.  W.  698. 

i2Stringer  v.  Gardiner,  27  Beav.   35;   4  De  G.  &  J.   468. 

i3Doe  v.  Needs,   2  M.  &  W.  129. 

i4ln  the  goods  of  De  Rosaz,  L.  R.   2  P.  D.   66 

i5Per  Leach,  V.  C.,  in  Hurst  v.  Leach,  5  Madd.  351,  360-361. 
The  rule  in  this  case  was  vindicated,  and  a  number  of  other 
cases,  both  before  and  after  it,  were  elaborately  cons.dered 
by  Lord  St.  Leonards,  when  chancellor  of  Ireland,  in  Hall 
v.  Hill,  1  Dru.  &  War.  94,  111-133.  See,  too,  Jenner  v.  Hinch, 
L.  R.   5  Prob.   Div.   106. 


DOCUMENTARY  EVIDENCE  677 

Extrinsic  evidence  is  generally  admissible  in  the  inter- 
pretation of  wills,  not  to  show  what  the  testator  meant 
as  distinguished  from  what  his  words  express,  but  for 
the  purpose  of  showing  the  meaning  of  the  words  used. 
—Eagle  v.  Oldham,  116  Ark.  565,  174  S.  W.  1176. 
California.  When  the  court  cannot  arrive  at  a  just  deter- 
mination of  the  meaning  of  the  language  and  arbitrary 
or  trade  signs  used  in  the  writing,  parol  evidence  is  ad- 
missible to  aid  the  court  in  construing  the  contract. — 
Berry  v.  Kowalsky,  95  Cal.  134,  30  P.  202. 

The  subject-matter  may  be  explained:  As  "Morrell 
Ranch,"  includes  more  than  one  ranch. — Morrell  v.  San 
Tomas  D.  &  P.  Co.,  13  Cal.  App.  305,  109  P.  632;  "Winter 
months"  may  mean  three  different  periods  of  the  year. — 
Whitney  v.  Aronson,  21  Cal.  App.  9,  130  P.  700;  "Ready 
for  occupancy,"  relating  to  the  completion  of  a  building. 
—Morse  v.  Tochterman.  21  Cal.  App.  726,  132  P.  1055. 
Colorado.  When  a  term  or  phrase  read  in  connection  with 
the  context  creates  an  ambiguity  it  may  be  explained  by 
oral  testimony:  As  "heart  of  yellow  pine." — San  Miguel 
Consol.  G.  M.  Co.  v.  Stubbs,  39  Colo.  359,  90  P.  842;  that 
property  "in  yard"  was  covered  by  an  insurance  policy. 
— Messenger  v.  German-American  Ins.  Co.,  47  Colo.  448,  107 
P.  643. 

Kansas.  Where  a  term  used  in  a  writing  appears  to  have 
a  meaning  in  connection  with  the  business  different  from 
t  lie  ordinary  meaning,  evidence  of  the  meaning  given  by 
usage  of  the  trade  or  business,  is  admissible. — Seymour  v. 
Armstrong.  62  Kan.  720,  64  P.  612;  McGrath  v.  Crouse,  6 
Kan  App.  507,  50  P.  969;  As  "Outcault  service  de  luxe." 
— OUtcaull  Advertising  Co.  v.  Waltner  Merc.  Co.,  96  Kan. 
6S9,   153   P.   518. 

The  word  "taxes"  has  two  well  recognized  meanings, 
one  inclusive  and  the  other  exclusive  of  special  assess- 
ments for  local  improvements.  Where  the  word  is  used  in 
a  written  instrument,  which  meaning  is  intended,  must  be 
determined  from  th<>  writing.— Chicago  G.  W.  Ry.  Co.  v. 
Kansas  City  Northwestern  R.  Co..  75  Kan.  167,  88  P.  10S5. 
Oklahoma.  In  an  action  on  a  written  contract  providing 
for  the  drilling  of  a   well   to  a   certain   depth   or  to   "the 


678  DOCUMENTARY  EVIDENCE 

Mississippi  lime"  parol  evidence  was  held  admissible  to 
explain  what  was  meant  by  the  term. — Barricklow  v. 
Boice,    (Old.),   150   P.   1094. 

Oregon.  When  the  meaning  of  the  words  used  in  a  writ- 
ing are  doubtful  or  ambiguous,  or  of  technical  import  as 
applied  to  the  subject-matter,  extrinsic  proof  is  admissible 
to  ascertain  the  intention  of  the  parties,  and  even  to  show 
that  ordinarily  unambiguous  terms  were  not  used  in  their 
usual  signification,  when  this  assumption  is  justified  by 
the  context. — McClusky  v.  Klosterman,  20  Or.  108,  25  P. 
366. 

The  expression  "merchantable  lumber  mill  run"  may 
be  explained  by  parol  evidence  de  hors  the  contract. — 
Barnes  v.  Leidigh,  46  Or.  43,  79  P.  51. 

South  Dakota.  Where  a  contract  for  digging  a  well  pro- 
vided for  a  flowing  well  but  did  not  specify  the  amount  of 
water  to  be  discharged  from  the  well,  parol  evidence  was 
held  admissible  to  determine  what  meaning  the  parties 
intended  to  give  the  term. — De  Rue  v.  Mcintosh,  26  S.  D. 
42,  127  N.  W.  532. 

The  words  "accepted  mortgage"  when  used  in  a  con- 
tract may  be  explained  by  oral  testimony. — Smith  v.  John- 
son, 30  S.  D.  200,  138  N.  W.  18. 

Texas.  Where  the  writing  as  a  whole  presents  uncer- 
tainty regarding  particular  matters,  parol  evidence  is  ad- 
missible to  show  the  sense  and  meaning  in  which  the  lan- 
guage employed  by  the  parties  was  used. — Generes  v.  Se- 
curity Life  Ins.  Co..  (Tex.  Civ.  App.),  163  S.  W.  386;  First 
State  Bank  v.  Power,   (Tex.  Civ.  App.),  166  S.  W.  382. 

Utah.  Where  the  use  of  the  premises  by  the  lessee  was 
restricted  by  the  lease  "for  lodge  purpose"  or  "lodge 
use,"  it  was  held  permissible  to  prove  a  local  usage  or  cus- 
tom prevalent  among  lodges  and  fraternal  organizations 
to  occasionally  use  lodge  rooms  for  dancing  and  other 
social  entertainments  for  members  and  their  friends. — 
O'Neill  v.   Ogden  Aerie,  No.  118,   32  Utah  162,   89  P.   464. 

Washington.  The  terms  "busy  season"  and  "dull  season," 
may  be  explained  by  parol. — Schultz  v.  Simmons  Fur  Co., 
46  Wash.  555,  90  P.  917;  "My  entire  catch  of  fish."— Perks 


DOCUMENTARY  EVIDENCE  679 

v.  Elmore,  59  Wash.  584,  110  P.  381;  "Workmanlike  man- 
ner" when  applied  to  constructive  work. — Armstrong  v. 
Wheeler,  86  Wash.  251,  150  P.  5. 

Literal  Meaning. 

Utah.  The  ordinary  meaning  of  certain  language  used  in 
a  writing  must,  in  some  instances  be  enlarged,  and  in 
others  restricted,  so  as  to  make  the  contract  when  consid- 
ered as  a  whole  conform  to  the  real  and  manifest  inten- 
tion of  the  parties,  notwithstanding  the  literal  meaning 
of  a  word,  phrase,  or  clause,  when  considered  by  itself, 
would  be  given  a  different  meaning. — Hilton  v.  Thatcher, 
31  Utah  370,  S8  P.  20;    Daly  v.  Old,  35  Utah  74,  99  P.  460. 

Terms  of  Science,  Art,  and  Trade. 

Arkansas.  It  may  be  shown  by  parol  evidence  that  words 
or  terms  were  used  in  a  writing  in  a  technical  sense,  and 
the  true  meaning  thus  disclosed. — Taylor  v.  Union  Saw 
Mill  Co.,  105  Ark.  518,  152   S.  W.   150. 

California.  It  is  not  necessary,  that  the  contract  should 
expressly  indicate  a  local,  technical,  or  peculiar  significa- 
tion, but  it  may  be  shown  by  parol  evidence  that  the  lan- 
guage is  so  used,  and  when  so  used  its  meaning  may  be 
explained.— Higgins  v.  California  P.  Co.,  120  Cal.  631,  52 
P.    1080. 

The  meaning  of  technical  or  trade  terms  may  be  ex- 
plained by  parol  evidence:  As  "bayo,"  a  variety  of  beans 
-Gardiner  v.  McDonogh,  147  Cal.  313,  SI  P.  964;  "Slightly 
processed,"  a  condition  of  fruit. — Scudders-Gale  Grocery 
Co.  v.  Gregory  Fruit  Co.,  9  Cal.  App.  553,  99  P.  97S. 

Kansas.  The  meaning  of  language  used  by  persons  en- 
gaged In  a  particular  business  and  understood  by  such 
persons  but  unintelligible  to  ordinary  persons  may  be 
explained  by  parol  evidence. — Western  Union  Tel.  Co.  v. 
Collins.  45  Kan.  88,  25  P.  187. 

Montana.  Where  the  terms  used  in  a  writing  have  a 
technical   or   peculiar   signification,    parol    testimony    may 

explain  their  meaning. — Newell  v.  Nicholson,  17  Mont. 
43  P.  180;   Cambers  v.  Lowry,  21   Mont     17s.  5  I   P.  816. 


680  DOCUMENTARY  EVIDENCE 

Oregon.  If  in  a  contract  technical  words  or  terms  of  art 
or  local  phrases  not  in  common  use  are  introduced,  or  if 
it  is  uncertain  what  person  or  what  thing  is  referred 
to,  oral  evidence  may  be  introduced  to  explain  the  lan- 
guage used,  but  when  the  writing  contains  no  technical 
terms,  the  construction  becomes  a  matter  of  law  for  the 
court.— Henry  v.  Harker,  61  Or.  276,  122  P.  298. 
Texas.  Parol  evidence  is  admissible  to  aid  in  the  inter- 
pretation of  a  contract  in  accordance  with  the  recognized 
meaning  of  any  word  or  term  therein  as  used  in  any  art, 
science,  or  the  trade  or  particular  business  out  of  which 
it  arises. — Southern  Gas  &  G.  Eng.  Co.  v.  Adams  &  Peters, 
(Tex.  Civ.  App.),  169  S.  W.  1143. 

Defective  and  Unmeaning  Expressions. 
Arkansas.  Sometimes  evidence  aliunde  is  admissible  to 
aid  the  description  of  property  in  tax  proceedings,  but  not 
where  the  description  is  incorrect  and  misleading  and  the 
designation  of  the  property  cannot  be  made  to  fit  its  cor- 
rect location. — Boswell  v.  Jordan.  112  Ark.  159,  165  S.  W. 
295. 

Kansas.  Where  the  description  in  a  tax  deed  is  so  indef- 
inite that  the  lands  cannot  be  identified,  it  is  void  and  can- 
not be  aided  by  parol  evidence. — Townsend  v.  Mallory,  94 
Kan.  297,  146  P.  318. 

North  Dakota.  Where  an  uncertainty  exists  arising  from 
defective,  obscure,  or  insensible  language  used,  as  to  the 
intention  of  the  parties  to  the  writing,  the  ambiguity  can- 
not be  explained  by  parol  evidence,  but  where  the  doubt  is 
not  as  to  the  intention,  but  as  to  the  object  to  which  the 
intention  applies,  such  evidence  is  admissible  to  dispel 
the  doubt.— Harney  v.  Wirtz,  30  N.  D.  292,  152  N.  W.  803. 

Legal  Meaning  and  Effect. 
California.  A  writing  should  not  be  so  construed  as  to 
lead  to  an  absurdity,  or  as  to  render  it  invalid,  where  by 
giving  to  the  words  used  a  less  legal  meaning  it  is  sus- 
ceptible of  a  construction  that  will  render  it  valid,  or  will 
result  in  effectuating  the  manifest  intention  of  the  parties. 
— Belden  v.  Farmers'  &  M.  Bank,  16  Cal.  App.  452,  118  P. 
449. 


DOCUMENTARY  EVIDENCE  681 

Texas.  Where  an  ambiguity  appears  in  a  writing,  it  is 
permissible  to  show  by  oral  testimony  what  legal  effect 
the  parties  intended  the  instrument  should  have,  even 
though  such  effect  be  different  from  that  which  would  be 
given  it  by  the  court,  unaided  by  such  testimony. — Rig- 
gins  v.  Post,   (Tex.  Civ.  App.),  172  S.  W.  210. 

AMBIGUITIES. 

California.  "About"  and  "more  or  less,"  when  found  in 
writings,  introduce  no  ambiguity  unless  otherwise  ap- 
parent from  the  context. — Peterson  v.  Chaix,  5  Cal.  App. 
525,  90  P.  948. 

Kansas.  Where,  by  giving  the  language  of  a  writing  its 
ordinary  meaning,  it  is  found  ambiguous  and  susceptible 
of  two  meanings,  all  the  circumstances  under  which  it  was 
made  should  be  considered  in  determining  which  meaning 
was  intended.— Chanute  Brick  &  T.  Co.  v.  Gas  Belt  Fuel 
Co.,  82  Kan.  752,  109  P.  398. 

Montana.  Where  a  contract  is  ambiguous,  its  true  mean- 
ing may  be  disclosed  by  evidence  aliunde. — Butte  Water 
Co.  v.  City  of  Butte.  48  Mont.  386,  138  P.  195. 
Utah.  If  the  terms  of  a  contract  are  ambiguous  or  un- 
certain, parol  evidence  is  admissible  to  disclose  the  true 
intention  of  the  parties. — Burt  v.  Stringfellow,  45  Utah 
207.   143  P.   234. 

Washington.  The  terms  "busy  season"  and  "dull  season" 
are  ambiguous  to  those  unacquainted  with  the  fur  trade 
and  oral  testimony  is  proper  to  explain  them  when  used 
in  a  written  contract  with  reference  to  that  trade. — 
Scultz  v.  Simmons  Fur  Co.,  46  Wash.  555,  90  P.  917. 

Patent   Ambiguity. 
California.     A   patent  ambiguity  in  the  description   of  an 
intended  assessment  district  may  not  be  removed  by  parol 
evidence. — Walker   v.   City   of  Los   Angeles,   23   Cal.   App. 
634.  139  P.  89. 

Kansas.  Where  an  ambiguity  in  the  description  of  prop- 
erty devised  by  will  can  be  eliminated  by  consideration 
of  matters  appearing  on  the  face  of  the  instrument,  leav- 
ing a  description   which   although   not   absolutely   certain 


682  DOCUMENTARY  EVIDENCE 

in  itself  points  out  how  the  property  can  be  ascertained, 
parol  evidence  is  proper  to  aid  the  construction. — Cum- 
mins v.  Riordon,  84  Kan.  791,  115  P.  568. 
Oklahoma.'  Where  there  is  anything  on  the  face  of  a 
written  instrument  which  suggests  a  doubt  or  ambiguity, 
parol  testimony  is  competent  as  between  the  original 
parties,  for  the  purpose  of  showing  their  true  intent. — 
Cohee  v.  Turner  &  W.,  37  Old.  778,  132  P.  1032;  Weagant 
v.  Camden,  37  Okl.  508,  132  P.  487. 

Texas.  If  a  writing  does  not  evidence  a  contract  without 
the  aid  of  parol  evidence,  it  cannot  be  enforced,  since  a 
patent  ambiguity  cannot  be  aided  by  oral  evidence. — 
Morris  v.  Bank,  67  Tex.  602,  4  S.  W.  246;  State  v.  Racine 
Sattley  Co.,   (Tex.  Civ.  App.),  134  S.  W.  400. 

Latent  Ambiguity. 
Arkansas.  Where  the  contract  contains  words  of  latent 
amTTiguity,  or  where  technical  terms  are  used,  or  terms 
which,  by  custom  or  usage,  are  used  in  a  sense  other  than 
the  ordinary  meaning  of  the  words,  oral  testimony  is  ad- 
missible to  explain  the  meaning  of  the  terms  or  words 
used.— Wood  v.  Kelsey,  90  Ark.  272,  119  S.  W.  258;  Paep- 
cke-Leicht  Lbr.  Co.  v.  Talley,  106  Ark.  400,  153  S.  W.  833; 
Davis  v.  Martin  Stave  Co.,  113  Ark.  325,  168  S.  W.  553; 
Wilkes  v.  Stacy,  113  Ark.  556,  169  S.  W.  796. 
Nebraska.  A  latent  ambiguity  may  be  explained  by  parol 
evidence.— Myers  v.  Persson,  94  Neb.  467,  143  N.  W.  447. 
New  Mexico.  A  latent  ambiguity  in  a  deed  is  subject  to 
explanation  by  parol  evidence,  and  all  the  circumstances 
attending  the  parties  at  the  date  of  the  transaction  may 
be  properly  considered. — Gentile  v.  Crossan,  7  N.  M.  589, 
38   P.   247. 

Texas.  When  the  uncertainty  does  not  appear  upon  the 
face  of  a  deed,  but  arises  from  extraneous  facts,  parol  evi- 
dence is  admissible  to  explain  or  remove  it. — Young  v. 
Gharis,  (Tex.  Civ.  App),  170  S.  W.  796. 
Washington.  Where  there  is  no  ambiguity  in  the  deed 
itself,  but  arises  outside  of  it,  parol  evidence  is  admissible 
to  explain  it;  hence  where  the  words  "lot  6"  were  em- 
ployed it  was  held  proper  to  show  that  it  was  the  inten- 


DOCUMENTARY  EVIDENCE  683 

tion  to  convey  a  piece  of  land  adjoining  lot  6,  and  which 
it  was  supposed  was  embraced  in  the  description  "lot  6." 
—Newman  v.  Buzard,  24  Wash.  225,  64  P.  139. 

Unambiguous  Expressions. 
Arkansas.  The  court  can  neither  eliminate  nor  supply 
nor  rearrange  the  words  and  sentences  in  an  unambiguous 
contract,  but  must  construe  it  as  the  parties  have  made 
it.— Clouston  v.  Maingault,  105  Ark.  213,  150  S.  W.  858. 
A  deed  conveying  "all  the  pine  and  oak  timber  ten 
inches  and  up"  cannot  be  varied  by  parol  testimony  to 
show  that  it  did  not  include  so-called  old  field  pine,  that 
is,  pine  growing  on  land  that  has  once  been  farmed. — 
Herin  v.  Union  Saw  Mill  Co.,  105  Ark.  455,  151  S.  W.  1007. 
California.  Words  introducing  no  ambiguity  cannot  be 
varied  by  parol:  As  "passenger  elevator"  and  "freight 
elevator."  in  an  insurance  policy. — Wilmarth  v.  Pacific 
Mut.  Lite  Ins.  Co.,  168  Cal.  536,  143  P.  780;  "About"  and 
"more  or  less."— Peterson  v.  Chaix,  5  Cal.  App.  525,  90 
P.  948;  "Grade."— Hill  v.  Clark,  7  Cal.  App.  609,  95  P.  382. 
Kansas.  Where  the  document  is  plain  and  distinct  in  its 
terms,  it  cannot  be  varied  by  parol. — Barrett  v.  Kansas 
&  T.  Coal  Co.,  70  Kan.  649,  79  P.  150. 
Texas.  Parol  evidence  is  not  admissible  to  show  that  the 
parties  to  a  contract  used  language  in  a  sense  different 
from  its  ordinary  meaning. — Morrison  v.  Hazzard,  99  Tex. 
583,  92  S.  W.  33;  Bergman  Prod.  Co.  v.  Brown,  (Tex.  Civ. 
App.),  156  S.  W.  1102;  O'Connor  v.  Camp,  (Tex.  Civ.  App.), 
158  S.  W.  203. 

Washington.  If  a  term  in  a  writing  is  equivocal  or  tech- 
nical, oral  proof  may  be  resorted  to  to  define  it,  but  "one 
half"  is  a  quantitative  term  and  cannot  be  shown  to  mean 
other  than  one  of  two  equal  parts  into  which  anything 
may  be  divided. — Owen  v.  Henderson.  16  WaBh.  39,  :'.7 
P.  215;   Robinson  v.  Taylor,  68  Wash.  351,  123  P.  444. 

Two  Consistent  Interpretations. 

Arizona.  A  writing  which  is  susceptible  of  two  consistent 
interpretations  may  be  explained  by  oral  testimony.— Prin- 
gle  v.  King.   9   Ariz.   76.  78   P.   367. 


684  DOCUMENTARY  EVIDENCE 

California.  Parol  evidence  is  admissible  to  explain  the 
terms  of  a  writing  the  language  of  which  is  susceptible 
of  either  one  of  two  interpretations,  each  of  which  would 
in  no  manner  or  degree  do  violence  to  the  usual  and  ordi- 
nary import  of  the  language  used. — Higgin's  v.  California 
Petroleum  Co.,  120  Cal.  629,  52  P.  1080;  Millet  v.  Taylor, 
26  Cal.  App.  161,  146  P.  42. 

Where  a  legatee  was  designated  as  the  "The  Woman's 
Christian  Temperance  Union  of  Los  Angeles"  and  no  such 
corporation  existed,  but  there  were  corporations  named 
"The  Los  Angeles  Woman's  Christian  Temperance  Union" 
and  "The  Woman's  Christian  Temperance  Union  of  South- 
ern California"  and  subsequently  another  incorporated 
named  "The  Woman's  Christian  Temperance  Union  Fed- 
eration of  Los  Angeles,"  each  of  which  claimed  the  legacy, 
parol  testimony  of  the  scrivener  who  drew  the  will  as  to 
what  the  testator  told  him  at  the  time  with  respect  to 
who  the  legatee  was,  was  admissible  under  section  1340 
Civil  Code.— Little's  Estate,  In  re,  170  Cal.  52,  148  P.  194. 

Colorado.  Where  a  deed  contains  two  descriptions  of  the 
land  conveyed,  parol  evidence  is  admissible  to  show  that 
one  of  them  applies  to  land  owned  by  the  grantor,  and 
he  will  be  held  to  have  conveyed  that  parcel. — Derham 
V.    Hill,    57    Colo.    345,    142    P.    181. 

Parol  evidence  is  admissible  to  show  that  two  different 
descriptions  of  land  conveyed  by  deed  applied  to  the  same 
property,  and  that  it  was  as  well  known  by  one  as  by  the 
other— Sullivan  v.  Collins,  20  Colo.  528,  39  P.  334;  State 
Savings  &  T.  Co.  v.  Matz,  26  Colo.  App.  511,  143  P.  1039. 

Kansas.  Where  a  tax  deed  described  the  land  as  in 
mower's  Addition,"  and  it  appears  that  there  is  more 
Ih  n  one  such  addition,  oral  testimony  is  admissible  to 
show  that  to  only  one  of  them  would  the  description  apply, 
and  Hie  deed  is  good. — Knote  v.  Caldwell,  43  Kan.  464,  23 
P.  6.5. 

N.w  i,!t.xico.  Where  a  writing  is  susceptible  of  more  than 
one  in  erpretation,  parol  evidence  of  the  circumstances 
under  which  it  was  executed  is  admissible  in  aid  of  its 
construction,  though  the  result  of  such  evidence  may  be 


DOCUMENTARY  EVIDENCE  685 

to  contradict  the  usual  meaning  of  the  terms  and  phrases 
used  in  the  writing.— Schwentker  v.  Hubbs,  21  N.  M.  188, 
153  P.  68. 

Oklahoma.  Where  it  is  doubtful  whether  the  signers  of 
a  writing  intended  to  obligate  themselves  individually  or 
the  corporation  which  they  represented,  oral  testimony 
is  admissible  to  disclose  their  object. — Denman  v.  Bren- 
namen,    (Okl.),   149  P.  1105. 

Utah.  Whenever  the  terms  of  a  written  instrument  are 
susceptible  of  more  than  one  interpretation,  or  a  latent 
ambiguity  arises,  or  the  extent  and  object  of  the  instru- 
ment cannot  be  ascertained  from  the  language  employed, 
parol  evidence  is  admissible  to  show  the  sense  which  the 
contracting  parties,  attached  to  the  terms  or  language  em- 
ployed; and  for  this  purpose  the  acts  and  conversations 
of  the  parties,  at  or  about  and  subsequent  to  the  time  of 
the  transaction,  relating  to  the  subject-matter,  constitute 
proper  evidence. — Brown  v.  Markland,  16  Utah  360,  52  P. 
597;  Fayter  v.  North,  30  Utah  156,  83  P.  742. 

RELATION  OF  WORDS  TO  FACTS. 
Arkansas.  The  statements  made  by  a  party  at  the  time 
of  the  execution  of  the  contract  may  be  testified  to  in 
order  to  explain  an  indefinite  term  used  in  the  writing. — 
Arkansas  Retail  Credit  Men's  Ass'n  v.  Lester,  (Ark.),  126 
S.  W.  712. 

A  latent  ambiguity  in  the  description  of  land  conveyed 
by  deed  may  be  explained  by  parol  evidence. — Scott  v. 
Dunckel  Box  &  L.  Co.,  106  Ark.  83,  152  S.  W.  1025. 
California.  Parol  evidence  is  admissible  to  show  all  the 
facts  and  circumstances  attending  the  transaction  and  to 
identify  the  subject-matter,  where  the  writing  is  ambig- 
uous.—Preble  v.  Abrahams,  88  Cal.  245,  26  P.  99;  First 
Nat.  Bank  v.  Ruddock  Co.,  158  Cal.  334,  111  P.  86;  Whit- 
ney v.  Aronson,  21  Cal.  App.  9,  130  P.  700. 

It  is  only  in  cases  where,  upon  the  face  of  the  instru- 
ment itself,  there  is  a  doubt  as  to  the  intention  of  the  con- 
tracting parties  that  oral  testimony  is  admissible  to  dispel 
that  doubt.— Harrison  v.  McCormick,  89  Cal.  327,  26  P.  830; 
United  Iron  Works  v.  Outer  Harbor  Dock  &  W.  Co.,   168 


686  DOCUMENTARY  EVIDENCE 

Cal.  81,  141  P.  917;  Morse  v.  Tochterman,  21  Cal.  App.  726, 
132  P.   1055. 

Colorado.  Though  mere  declarations  of  parties  as  to  the 
meaning  or  application  of  the  descriptive  part  of  a  deed 
may  not  be  admissible  to  explain  ambiguous  or  doubtful 
words  therein  contained,  nevertheless  collateral  facts  and 
circumstances,  established  by  parol  evidence,  are  often 
admissible  for  that  purpose.— Cullacott  v.  Mining  Co.,  8 
Colo.  179,  6  P.  211;  Kretschmer  v.  Hard,  18  Colo.  223,  32 
P.  418. 

Parol  evidence  is  admissible  for  the  purpose  of  showing 
that  a  description  used  in  a  conveyance  was  commonly 
understood  in  the  vicinity,  and  that  it  clearly  designates 
the  property,  hence  it  may  be  shown  that  both  of  two 
different  descriptions  apply  to  the  same  property  and  that 
it  is  as  well  known  by  one  as  by  the  other. — Sullivan  v. 
Collins,  20  Colo.  528,  39  P.  334;  State  Savings  &  T.  Co. 
v.  Matz,  26  Colo.  App.  511,  143  P.  1039. 

Where  in  a  deed  two  descriptions  intended  to  apply  to 
the  same  land  are  not  reconcilable,  evidence  of  extrinsic 
facts  may  be  admitted  to  show  the  intention  of  the  parties. 
— Derham  v.  Hill,  57  Colo.  345,  142  P.  181. 

Where  the  writing  on  its  face  is  uncertain,  parol  evi- 
dence is  admissible  to  show  the  real  intent  of  the  parties. 
—New  England  Elect.  Co.  v.  Shook,  27  Colo.  App.  30,  145 
P.   1002. 

EXTRINSIC   FACTS  AND  CIRCUMSTANCES. 

Nebraska.  Where  a  scrivener  made  a  mistake  in  draw- 
ing a  will,  evidence  of  it  may  be  given  and  that  it  was 
induced  by  an  oversight  of  the  testator.— Pemberton  v. 
Perrin,  94  Neb.  718,  144  N.  W.  164. 

Oregon.  Though  mere  declarations  of  parties  as  to  the 
meaning  or  application  of  the  descriptive  part  of  a  deed 
may  not  be  admissible  to  explain  ambiguous  or  doubtful 
words  therein  contained,  nevertheless  collateral  facts  and 
circumstances,  established  by  parol  evidence,  are  often 
admissible  for  that  purpose. — Hicklin  v.  McClear,  18  Or. 
126,  22  P.  1057. 


DOCUMENTARY  EVIDENCE  687 

South  Dakota.  Resort  may  be  had  to  conversations  show- 
ing the  intent  and  understanding  of  the  parties,  together 
with  surrounding  circumstances  existing  at  the  time  the 
identity. — Dorr  v.  School  Dist.,  40  Ark.  237;  Fordyce  Lum- 
contract  was  entered  into  to  explain  the  intent  of  the 
parties  where  it  is  not  clear  and  cannot  be  ascertained 
with  reasonable  certainty  by  a  construction  of  the  lan- 
guage used.— Miller  v.  Way,  5  S.  D.  468,  59  N.  W.  467; 
Small  v.  Elliott,  12  S.  D.  570,  82  N.  W.  92;  Grimsrud  Shoe 
Co.  v.  Jackson.  22  S.  D.  114,  115  N.  W.  656;  Smith  v. 
Johnson,  30  S.  D.  200,  138  N.  W.  18;  Korte  v.  O'Neill,  34 
S.   D.   241,   148   N.  W.   12. 

Utah.  Circumstances  surrounding  the  execution  of  an 
ambiguous  contract  may  be  shown  in  order  to  arrive  at 
the  intent  of  the  parties. — Halverson  v.  Walker,  38  Utah 
264,  112  P.  804. 

When  necessary,  it  may  properly  be  inferred  from  the 
express  provisions  of  a  written  contract  that  there  were 
other  provisions  to  which  they  would  apply  not  contained 
in  the  writing,  and  evidence  aliunde  is  admissible  to  define 
them.— Burt  v.  Stringfellow,  45  Utah  207,  143  P.  234. 

Washington.  Parol  testimony  is  admissible  to  show  the 
circumstances  under  which  a  deed  was  made,  to  define 
technical  terms,  or  to  explain  latent  ambiguities. — String- 
felder  v.  Hall,  21  Wash.  371,  58  P.  250;  Brown  v.  City  of 
Bremerton,   69  Wash.  474,   125   P.   785. 

IDENTIFICATION    OF    SUBJECT-MATTER. 

Arkansas.  Resort  may  be  had  to  extrinsic  evidence  in 
order  to  fit  a  description  to  the  land  conveyed,  but  the 
descriptive  words  in  the  deed  must  furnish  the  key  to  the 
ber  Co.  v.  Wallace,  85  Ark.  1,  107  S.  W.  160;  Paragould  v. 
Lawson,  88  Ark.  478.  115  S.  W.  379;  Colonial  &  United 
States  Mortgage  Co.  v.  Lee,  95  Ark.  253,  129  S.  W.  84. 

Idaho.  Oral  testimony  is  admissible  for  the  purpose  of 
identifying  the  subject-matter  of  a  written  contract  where 
the  same  is  indefinite. — Sprongbcrg  v.  First  Nat.  Bank.  15 
Ida.  671,  99  P.  712;  Barnett  v.  Hagan.  18  Ida.  104,  108  P. 
743. 


688  DOCUMENTARY  EVIDENCE 

Kansas.  Parol  evidence  is  admissible  to  show  all  the  facts 
and  circumstances  attending  the  transaction  and  to  identify 
the  subject-matter,  where  the  writing  is  ambiguous. — 
Hollis  v.  Burgess,  37  Kan.  487,  15  P.  536. 

Where  the  description  of  the  property  conveyed  by  deed 
is  so  indefinite  that  it  cannot  be  located  precisely,  parol 
evidence  is  properly  admitted  to  show  what  property  was 
intended  to  be  conveyed  by  the  deed.  See  cases  cited. — 
Riley  v.  Foster,  95  Kan.  213,  148  P.  246. 
Texas.  Where  the  description  of  land  conveyed  by  deed 
is  imperfect,  parol  testimony  may  be  resorted  to  for  the 
purpose  of  identifying  the  land  conveyed. — Willson  v. 
Baker,  71  Tex.  748,  9  S.  W.  867;  Wilkerson  v.  Ward,  (Tex. 
Civ.  App.),  137  S.  W.  158. 

Where  a  deed  does  not  identify  with  certainty  the  land 
conveyed,  it  may  be  identified  by  parol. — Brown  v.  Foster 
Lumber  Co.,    (Tex.  Civ.  App.),  178  S.  W.  787. 

LAWFUL  OR  UNLAWFUL  CONSTRUCTION. 
Oregon.  Where  a  contract  is  fairly  open  to  two  construc- 
tions, by  one  of  which  it  would  be  lawful,  and  the  other 
unlawful,  the  former  must  be  adopted. — North  Pacific 
Lumber  Co.  v.  Spore,  44  Or.  462,  75  P.  890;  Keady  v.  Uni- 
ted Rys.  Co.,  57  Or.  325,  108  P.  197. 

Intention   of  Party. 

Arizona.  Resort  cannot  be  had  to  extrinsic  evidence  to 
show  the  intention  of  a  testator. — La  Tourette  v.  La  Tou- 
rette,  15  Ariz.  200,  137  P.  426. 

Arkansas.  Parol  testimony  whether  or  not  a  legacy  or 
devise  was  intended  to  forgive  a  debt  from  the  legatee  or 
devisee  is  admissible. — Bromley  v.  Atwood,  79  Ark.  357, 
96  S.  W.  356. 

Extrinsic  evidence  is  not  admissible  to  prove  an  inten- 
tion of  a  testator  in  regard  to  the  disposition  of  his  prop- 
erty not  expressed  in  the  will,  but  such  evidence  is  proper 
for  the  purpose  of  identifying  the  beneficiary,  where  there 
is  uncertainty  or  ambiguity  in  the  designation. — McDon- 
ald v.  Shaw,  81  Ark.  235,  98  S.  W.  952;  Duensing  v.  Duen- 
sing,  112  Ark.  362,  165  S.  W.  956. 


DOCUMENTARY  EVIDENCE  689 

While  evidence  may  be  received  to  explain  any  ambig- 
uity in  the  designation  of  a  beneficiary  under  a  will,  yet 
neither  the  scrivener  or  anyone  else  can  be  permitted  to 
testify  that  the  testator  meant  or  intended  any  disposi- 
tion of  his  property  not  expressed  in  the  will. — Longer  v. 
Beakley,  106  Ark.  219,  153  S.  W.  811;  Wilson  v.  Storthz. 
117  Ark.  418,  175  S.  W.  45. 

California.  Where  a  deed  is  deposited  in  escrow  with 
written  instructions  as  to  its  delivery,  such  writing  does 
not  exclude  parol  testimony  as  to  the  intentions  of  the 
grantor.— Ruiz  v.  Dow,  113  Cal.  490,  45  P.  867. 
Nebraska.  Where  a  testator  bequeathed  property  to  his 
nephew,  giving  his  name  and  place  of  residence,  parol  evi- 
dence was  held  admissible  to  show  that  the  testator  had 
no  nephew  residing  at  such  place  by  the  name  given,  and 
that  he  had  but  one  nephew  residing  there,  whose  name 
was  quite  similar  to  the  one  given,  and  it  was  held  that 
he  was  the  intended  beneficiary. — Pemberton  v.  Perrin. 
94  Neb.  718,  144  N.  W.  164. 

New  Mexico.  Where  a  contract  as  a  whole  discloses  a 
given  intention,  if  certain  words  or  clauses  taken  literally 
would  defeat  the  intention,  it  will  be  considered,  if  pos- 
sible, so  as  to  be  consistent  with  the  general  intention. 
—Colorado  Tel.  Co.  v.  Fields.  15  N.  M.  431.  110  P.  571. 

NOTE   XXXIII. 
(To  Article  91.) 

Perhaps  the  subject-matter  of  this  article  does  not  fall 
strictly  within  the  Law  of  Evidence,  but  it  is  generally  con- 
sidered to  do  so;  and  as  it  has  always  been  treated  as  a 
branch  of  the  subject,  I  have  thought  it  best  to  deal  with  it. 

The  general  authorities  for  the  propositions  in  the  text 
are  the  same  as  those  specified  in  the  last  note;  but  the 
great  authority  on  the  subject  is  the  work  of  Vice-Chancellor 
Wigram  on  Extrinsic  Evidence.  Article  91,  indeed,  will  be 
found,  on  examination,  to  differ  from  the  six  propositions 
of  Vice-Chancellor  Wigram  only  in  its  arrangement  and  form 
of  expression,  and  in  the  fact  that  it  is  not  restricted  to 
wills.  It  will  I  think,  be  found,  on  examination,  that  every 
case  cited  by  the  Vice-Chancellor  might  be  used  as  an  illus- 
tration of  one  or  the  other  of  the  propositions  contained  in  it. 

It  is  difficult  to  justify  the  line  drawn  between  the  rule 
as    to    cases    in    which    evidence    of   expressions    of    intention 


690  DOCUMENTARY  EVIDENCE 

is  admitted  and  cases  in  which  it  is  rejected  (paragraph  7, 
illustrations  (k),  (1),  and  paragraph  8,  illustration  (m)). 
"When  placed  side  by  side,  such  cases  as  Doe  v.  Hiscocks 
(illustration  k)  and  Doe  v.  Needs  (illustration  m)  produce 
a  singular  effect.  The  vagueness  of  the  distinction  between 
them  is  indicated  by  the  case  of  Charter  v.  Charter,  L.  R. 
2  P.  &  D.  315.  In  this  case  the  testator  Porster  Charter 
appointed  "my  son  Forster  Charter"  his  executor.  He  had 
two  sons,  William  Porster  Charter  and  Charles  Charter,  and 
many  circumstances  pointed  to  the  conclusion  that  the  per- 
son whom  the  testator  wished  to  be  his  executor  was  Charles 
Charter.  Lord  Penzance  not  only  admitted  evidence  of  all 
the  circumstances  of  the  case,  but  expressed  an  opinion  (p. 
319)  that,  if  it  were  necessary,  evidence  of  declarations  of 
intention  might  be  admitted  under  the  rule  laid  down  by 
Lord  Abinger  in  Hiscocks  v.  Hiscocks,  because  part  of  the 
language  employed  ("my  son  Charter")  applied  cor- 
rectly to  each  son,  and  the  remainder,  "Forster,"  to  neither. 
This  mode  of  construing  the  rule  would  admit  evidence  of 
declarations  of  intention  both  in  cases  falling  under  para- 
graph 8,  and  in  cases  following  under  paragraph  7, 
which  is  inconsistent  not  only  with  the  reasoning  in 
the  judgment,  but  with  the  actual  decision  in  Doe  v.  His- 
cocks. It  is  also  inconsistent  with  the  principles  of  the 
judgment  in  the  later  case  of  Allgood  v.  Blake,  L.  R.  8  Ex. 
160,  where  the  rule  is  stated  by  Blackburn,  J.,  as  follows: — 
"In  construing  a  will,  the  court  is  entitled  to  put  itself  In 
the  position  of  the  testator,  and  to  consider  all  material  facts 
and  circumstances  known  to  the  testator  with  reference  to 
which  he  is  to  be  taken  to  have  used  the  words  in  the  will, 
and  then  to  declare  what  is  the  intention  evidenced  by  the 
words  used  with  reference  to  those  facts  and  circumstances 
which  were  (or  ought  to  have  been)  in  the  mind  of  the  tes- 
tator when  he  used  those  words."  After  quoting  Wigram 
on  Extrinsic  Evidence,  and  Doe  v.  Hiscocks,  he  adds:  "No 
doubt,  in  many  cases  the  testator  has,  for  the  moment,  for- 
gotten or  overlooked  the  material  facts  and  circumstances 
which  he  well  knew.  And  the  consequence  sometimes  is 
that  he  uses  words  which  express  an  intention  which  he 
would  not  have  wished  to  express,  and  would  have  altered 
if  he  had  been  reminded  of  the  facts  and  circumstances. 
But  the  court  is  to  construe  the  will  as  made  by  the  tes- 
tator, not  to  make  a  will  for  him;  and  therefore  it  is  bound 
to  execute  his  expressed  intention,  even  if  there  is  great 
reason  to  believe  that  he  has  by  blunder  expressed  what  he 
did  not  mean."  The  part  of  Lord  Penzance's  judgment  above 
referred  to  was  unanimously  overruled  in  the  House  of  Lords; 
though   the   court,   being   equally   divided   as   to   the   construe- 


DOCUMENTARY  EVIDENCE  691 

tion   of   the   will,    refused   to   reverse    the   judgment    upon   the 
principle   "praesumitur   pronegante." 

Conclusive  as  the  authorities  upon  the  subject  are,  it  may 
not,  perhaps,  be  presumptuous  to  express  a  doubt  whether 
the  conflict  between  a  natural  wish  to  fulfill  the  intention 
which  the  testator  would  have  formed  if  he  had  recollected 
all  the  circumstances  of  the  case;  the  wish  to  avoid  the 
evil  of  permitting  written  instruments  to  be  varied  by  oral 
evidence;  and  the  wish  to  give  effect  to  wills,  has  not  pro- 
duced in  practice  an  illogical  compromise.  The  strictly  logi- 
cal course,  I  think,  would  be  either  to  admit  declarations  of 
intention  both  in  cases  falling  under  paragraph  7,  and  in 
cases  falling  under  paragraph  8,  or  to  exclude  such  evidence 
in  both  classes  of  cases,  and  to  hold  void  for  uncertainty 
every  bequest  or  devise  which  was  shown  to  be  uncertain 
in  its  application  to  facts.  Such  a  decision  as  that  in 
Stringer  v.  Gardiner,  the  result  of  which  was  to  give  a  legacy 
to  a  person  whom  the  testator  had  no  wish  to  benefit,  and 
who  was  not  either  named  or  described  in  his  will,  appears 
to  me  to  be  a  practical  refutation  of  the  principle  or  rule 
on  which   it  is  based. 

Of  course  every  document,  whatever,  must  to  some  extent 
be  interpreted  by  circumstances.  However  accurate  and  de- 
tailed a  description  of  things  and  persons  may  be,  oral  evi- 
dence is  always  wanted  to  show  that  persons  and  things 
answering  the  description  exist;  and  therefore  in  every  case 
whatever,  every  fact  must  be  allowed  to  be  proved  to  which 
the  document  does,  or  probably  may,  refer;  but  if  more  evi- 
dence than  this  is  admitted,  if  the  court  may  look  at  cir- 
cumstances which  affect  the  probability  that  the  testator 
would  form  this  intention  or  that,  why  should  declarations 
of  intention  be  excluded?  If  the  question  is,  "What  did  the 
testator  say?"  why  should  the  court  look  at  the  circumstances 
that  he  lived  with  Charles,  and  was  on  bad  terms  with  Wil- 
liam? How  can  any  amount  of  evidence  to  show  that  the 
testator  intended  to  write  "Charles"  show  that  what  he  did 
write  means  "Charles"?  To  say  that  "Porster"  means 
"Charles,"  is  like  saying  that  "two"  means  "three."  If  the 
question  is,  "What  did  the  testator  wish?"  why  should  the 
court  refuse  to  look  at  his  declarations  of  intention?  And 
what  third  question  can  be  asked?  The  only  one  which  can 
be  suggested  is.  "What  would  the  testator  have  meant  if 
he  had  deliberately  used  unmeaning  words?"  The  only  an- 
swer to  this  would  be,  he  would  have  had  no  meaning,  and 
would  have  said  nothing,  and  his  bequest  should  be  pro  tanto 
void. 


692  DOCUMENTARY  EVIDENCE 

Article  92.* 
cases  to  which  articles  90  and  91  do  not  apply. 

Articles  90  and  91  apply  only  to  parties  to  doc- 
uments, and  to  their  representatives  in  interest, 
and  only  to  cases  in  which  some  civil  right  or  civil 
liability  dependent  upon  the  terms  of  a  document 
is  in  question.  Any  person  other  than  a  party 
to  a  document  or  his  representative  in  interest 
may,  notwithstanding  the  existence  of  any  docu- 
ment, prove  any  fact  which  he  is  otherwise  en- 
titled to  prove;  and  any  party  to  any  document 
or  any  representative  in  interest  of  any  such  party 
may  prove  any  such  fact  for  any  purpose  other 
than  that  of  varying  or  altering  any  right  or  lia- 
bility depending  upon  the  terms  of  the  document. 

Illustrations. 

(a)  The  question  is,  whether  A,  a  pauper,  is  settled  in  the 
parish  of  Cheadle.  A  deed  of  conveyance  to  which  A  was  a 
party  is  produced,  purporting  to  convey  land  to  A  for  a  valu- 
able consideration.  The  parish  appealing  against  the  order 
was  allowed  to  call  A  as  a  witness  to  prove  that  no  consid- 
eration  passed.1 

(b)  The  question  is,  whether  A  obtained  money  from  B 
under  false  pretences.  The  money  was  obtained  as  a  prem- 
ium for  executing  a  deed  of  partnership,  which  deed  stated  a 
consideration  other  than  the  one  which  constituted  the  false 
pretence.  B  may  give  evidence  of  the  false  pretence  although 
he  executed  the  deed  misstating  the  consideration  for  the 
premium.2 


5R.   v.   Cheadle,   3   B.   &  Ad.   833. 
-II.    v.    Adamson,    2    Moody   286. 


♦See  note  at  end  of  article. 


DOCUMENTARY  EVIDENCE  693 

APPLICATION  OF  RULE  AS  TO  PARTIES. 

In  General. 
The  rule  that  parol  contemporaneous  evidence  is  inad- 
missible to  contradict  or  vary  the  terms  of  a  valid  writ- 
ten instrument  is  applicable  only  in  suits  between  the 
parties  to  the  writing  or  their  privies: 
California:  Massie  v.  Chatom,  163  Cal.  772,  127  P.  56; 
Christenson  Lbr.  Co.  v.  Buckley,  17  Cal.  App.  37,  118  P. 
466. 

Kansas:     Brenner   v.    Luth,    28    Kan.    581. 

Nebraska:  Rosewater  v.  Hoffman,  24  Neb.  222,  38  N.  W. 
857;  Heisler  Pumping  Eng  Co.  v.  Baum,  86  Neb.  1,  124 
N.  W.  916. 

North  Dakota:  Luther  v.  Hunter,  7  N.  D.  544,  75  N.  W.  916. 
Oregon:  Pacific  Coast  Biscuit  Co.  v.  Dugger,  42  Or.  513, 
70  P.  523;    Smith  v.  Farmers'  &  M.  Nat.  Bank,  57  Or.  82, 

110  P.  410. 

Texas:  Kahle  v.  Stone,  95  Tex.  106,  65  S.  W.  623;  Single- 
tary  v.  Goeman,  (Tex.  Civ.  App.),  123  S.  W.  436;  Clayton 
v.  Phillipp,  (Tex.  Civ.  App.),  159  S.  W.  117. 
Utah:  Hall  v.  McNally,  23  Utah  606,  65  P.  724;  Olmstead 
v.  Oregon  Short  Line  R.  Co.,  27  Utah  515,  76  P.  557. 
Washington:  Watson  v.  Hecla  Min.  Co.,  79  Wash.  383,  140 
P.  317;   Ransom  v.  Wickstrom,  84  Wash.  419,  146  P.  1041. 

Obligor  and  Payee. 
In  some  instances  as  between  the  obligor  and  payee  of 
a  negotiable  instrument,  the  liability  of  the  former  may 
be  shown  by  parol  evidence  to  be  different  from  that  in- 
dicated by  the  face  of  the  instrument: 

Colorado:     Kinsel  v.  Wieland,  38  Colo.  296,  88  P.  153. 
Oklahoma:      Wills  v.  Fuller,   (Old.),  150  P.  693. 
Oregon:      Holt  man    v.    Habighorst,    38    Or.    261,    63   P.   610; 
Lumberman's     Nat.     Bank    v.    Campbell.    61    Or.    123,     121 
P.  427. 

South    Dakota:      Windhorst   v.    Bergendahl,    21    S.    D.    218, 

111  N.  W.  541;  Rumely  Co.  v.  Anderson,  35  S.  D.  114,  150 
N.  \V.  939. 


694  DOCUMENTARY  EVIDENCE 

Texas:  First  Nat.  Bank  v.  Rusk  Pure  Ice  Co.,  (Tex.  Civ. 
App.),  136  S.  W.  89. 

Utah:     Gregg  v.  Groesbeck,  11  Utah  310,  40  P.  202. 
Washington:     Binnian   v.    Jennings,    14  Wash.    677,   45   P. 
302;   Bank  v.  Jeffs,  15  Wash.  230,  46  P.  247. 

Parties  Obligated  To  Pay  Negotiable  Instrument. 

As  between  the  parties  obligated  to  pay  a  negotiable  in- 
strument, any  agreement  as  to  their  respective  liabilities 
may  be  shown  by  oral  testimony: 

Arkansas:     First  Nat.  Bank  v.  Reinman,  93  Ark.  376,  125 
S.  W.  443;   Mott  v.  Causey,  112  Ark.  607,  165  S.  W.  636. 
Kansas:     Fullerton  v.  Hill,  48  Kan.  558,  29  P.  583;   Kline 
v.  Bank,  50  Kan.  91,  31  P.  688. 

Nebraska:  Cox  v.  Ellsworth,  97  Neb.  392,  150  N.  W.  197. 
North  Dakota:  Bank  v.  Farnsworth,  7  N.  D.  6,  72  N. 
W.  901. 

Oklahoma:     Stovall  v.  Adair,  9  Okl.  620,  60  P.  282. 
Texas:     Daugherty  v.  Wiles,    (Tex.  Civ.  App.),  156  S.  W. 
1089;    Kohlberg  v.  Aubrey  &   S.,    (Tex.   Civ.  App.),  167   S. 
W.  828. 

Colorado.  Where  a  non-negotiable  instrument  is  trans- 
ferred by  endorsement  it  may  be  shown  by  parol  what 
liability  the  endorser  assumed. — Kinderman  v.  Hersch,  53 
Colo.  561,  129  P.  228. 

NOTE  XXXIV. 
(To   Article  92.) 

See  2  Ph.  Ev.  364;  Star.  726;  T.  E.  (from  Greenleaf),  s. 
1051.  Various  cases  are  quoted  by  these  writers  in  support 
of  the  first  part  of  the  proposition  in  the  article;  but  R.  v. 
Cheadle  is  the  only  one  which  appears  to  me  to  come  quite 
up  to  it.     They  are  all  settlement  cases. 


PART  III. 
PRODUCTION  AND  EFFECT  OF  EVIDENCE. 


696  BURDEN  OF  PROOF 

CHAPTER  XIII.* 

BURDEN  OF  PROOF. 

Article  93. 

he  who  affirms  must  prove. 

Whoever  desires  any  Court  to  give  judgment 
as  to  any  legal  right  or  liability  dependent  on  the 
existence  or  non-existence  of  facts  which  he  as- 
serts or  denies  to  exist,  must  prove  that  those 
facts  do  or  do  not  exist,  (a) 

BURDEN    OF    PROOF. 

Civil  Cases. 

The  burden  of  proof  is  on  a   defendant  to   establish  a 

counterclaim. — Morris  v.  Hokosona.  26  Colo.  App.  251,  143 

P.  826;  Powder  Valley  State  Bank  v.  Hudelson,  74  Or.  191, 

144  P.  494. 

The  burden  of  establishing  an  affirmative  defense  is  on 
the  defendant: 

Arkansas:  Mueller  v.  Breckenridge,  121  Ark.  633,  181  S. 
W.  145  (action  on  note;  defendant  has  burden  of  proof  on 
his  plea  of  set-off). 

Nebraska:  Omaha  Nat.  Bank  v.  Graham,  98  Neb.  844, 
154  N.  W.  729  (suit  on  note;  affirmative  defenses). 
Oklahoma:  Fifth  Ave.  Library  Society  v.  Phillips,  39 'Okl. 
799,  136  P.  1076  (suit  on  contract  for  set  of  books;  de- 
fendant, setting  up  breach  of  warranty,  must  prove  it). 
Texas:  Powell  v.  Powell,  (Tex.  Civ.  App.),  170  S.  W. 
Ill  (divorce  action  by  wife;  defendant  assumes  burden  of 
proving  defense  of  undue  influence  by  wife's  mother). 

(a)  1  Ph.  Ev.  552;  T.  E.  (from  Greenleaf),  s.  337;  Best,  ss. 
265-266;    Starkie,   585-586;    [4   Wigmore   Ev.,    §    2483   et'seq.]. 

*See  Note  at  end  of  chapter. 


BURDEN  OF  PROOF  697 

Washington:  McVay  v.  Reese,  62  Wash.  562,  114  P.  184 
(action  on  note;  defendant  has  burden  of  proving  want 
of  consideration) ;  Nicholson  v.  Neary,  77  Wash.  294,  137 
P.  492  (same). 

Arkansas.  A  defendant  alleging  a  set-off  has  the  burden 
of  proving  the  same. — Mueller  v.  Breckenridge,  121  Ark. 
633,  181  S.  W.  145. 

California.  While  a  plaintiff  is  required  to  establish  his 
case  by  a  preponderance  of  the  evidence,  a  preponderance 
of  evidence  does  not  necessarily  mean  a  preponderance  of 
the  number  of  witnesses. — Grant  v.  McPherson,  104  Cal. 
165,  37  P.  864. 

"Burden  of  proof"  means  the  necessity  of  establishing 
the  existence  of  a  certain  fact  or  set  of  facts  by  evidence 
which  preponderates  to  the  legally  required  extent,  and 
in  this  sense  the  burden  of  proof  is  on  the  party  main- 
taining the  affirmative  of  the  issue;  but  the  expression 
also  means  the  necessity  which  rests  on  the  party  at  any 
particular  time  during  a  trial  to  create  a  prima  facie 
case  in  his  own  favor,  or  to  overthrow  one  when  created 
against  him.  (Suit  on  note;  incumbent  on  plaintiff  to 
prove  due  execution  and  nonpayment;  burden  then  on 
defendant  to  disprove  presumption  of  sufficient  consider- 
ations—Ruth v.  Krone.  10  Cal.  App.  770,   103  P.  960. 

The  burden  of  proof  is  upon  a  party  to  sustain  his  alle- 
gations—Fawcett  v.  Gregg,  26  Cal.  App.  727,  148  P.  524. 
Oklahoma.  Ordinarily  the  burden  of  proof  as  to  any  par- 
ticular fact  rests  on  the  party  asserting  such  fact. — Fifth 
Ave.  Library  Society  v.  Phillips,  39  Okl.  799,  136  P.  1076. 

A  defendant  pleading  breach  of  warranty  has  the  burden 
to  prove  same. — Fifth  Ave.  Library  Society  v.  Phillips,  39 
Okl.  799,  136  P.  1076. 

The  burden  of  establishing  the  entire  case  by  a  pre- 
ponderance of  the  evidence  is  at  all  times  upon  the  party 
having  the  affirmative,  and  remains  during  the  entire  case 
where  the  pleadings  originally  placed  it. — Standard  Ma- 
rine Ins.  Co.  v.  Traders'  Compress  Co.,  46  Okl.  356,  148  P. 
1019. 

In  an  action  on  a  note  or  account  where  the  defense  al- 
leged is  breach  of  warranty  in  the  article  for  the  purchase 


698  BURDEN  OP  PROOF 

of  which  the  note  or  account  was  made,   the  burden  of 

proof  is  upon  the  defendant. — Congdon  v.  McAlester  C.  & 

W.  Factory,   (Okl.),  155  P.  597. 

Oregon.     He  who  alleges  must  prove. — Peaslee  v.  Gordon 

Falls  Elec.  &  M.  Co.,  68  Or.  244,  135  P.  521. 

Texas.     He  who  affirms  must  prove. — Wells  v.  Margraves, 

(Tex.  Civ.  App.),  164  S.  W.  881;   Texas  Power  &  L.  Co.  v. 

Bird,  (Tex.  Civ.  App.),  165  S.  W.  8. 

The  burden  of  proof  is  generally  upon  the  plaintiff. 
(Action  for  setting  fire  to  plaintiff's  barn  by  sparks  from 
engine;  burden  on  plaintiff  to  show  that  engines  were  not 
in  good  condition.) — Texas  Midland  R.  R.  v.  Ray,  (Tex. 
Civ.   App.),    168    S.   W.    1013. 

When  a  plaintiff  has  produced  evidence  sufficient  to 
raise  an  issue  as  to  the  truth  of  his  claim,  and  it  appears 
from  the  circumstances  that  defendant  is  in  possession 
of  evidence  which  will  show  whether  or  not  the  inferences 
which  can  legitimately  be  drawn  from  plaintiff's  evidence 
are  true,  and  does  not  offer  it,  it  is  a  fair  and  legitimate  in- 
ference that  the  evidence  so  withheld  by  defendant  would, 
if  produced,  confirm  the  inference  arising  from  plaintiff's 
evidence;  but  plaintiff's  case  cannot  be  sustained  when 
it  depends  wholly  upon  the  failure  of  defendant  who  is 
shown  to  be  in  possession  of  the  facts,  to  disprove  plain- 
tiff's claim.  Until  the  plaintiff  makes  out  a  prima  facie 
case  the  defendant  is  not  required  to  offer  any  evidence. 
—Texas  Co.  v.  Clarke,  (Tex.  Civ.  App.),  182  S.  W.  351. 
Washington.  "Preponderance  of  evidence"  is  the  excess 
over  the  amount  of  testimony  necessary  to  balance  the 
scales,  and,  when  we  say  the  burden  of  proof  is  upon  a 
party  we  mean  simply  that  he  must  furnish  that  excess 
before  he  is  entitled  to  a  verdict. — McKenzie  v.  Oregon 
Imp.  Co.,  5  Wash.  409,  31  P.  748;  Palmer  v.  Huston,  67 
Wash.  210,  121  P.  452. 

A  defendant  who  pleads  an  affirmative  defense  has  the 
burden  to  sustain  it. — McVay  v.  Reese,  62  Wash.  562,  114 
P.  184. 

One  who  pleads  want  of  consideration  when  sued  on  a 
note  has  the  burden  of  proof.— Nicholson  v.  Neary,  77 
Wash.  294,  137  P.  492. 


BURDEN  OF  PROOF  699 

Criminal  Prosecutions. 

The  burden  is  on  the  prosecution  to  prove  the  defend- 
ant guilty  beyond  a  reasonable  doubt. — McBride  v.  Peo- 
ple, 60  Colo.  435,  153  P.  751;  State  v.  Bogris,  26  Ida.  58, 
144  P.  7S9;   State  v.  Smith,  21  N.  M.  173,  153  P.  256. 

A  reasonable  doubt  is  that  state  of  the  case,  which  after 
the  entire  comparison  and  consideration  of  all  the  evi- 
dence, leaves  the  minds  of  jurors  in  that  condition  that 
they  cannot  say  they  feel  an  abiding  conviction,  to  a  moral 
certainty,  of  the  truth  of  the  charge. — Commonwealth  v. 
Webster,  5  Cush.  (Mass.)  295,  320;  People  v.  Chun  Heong, 
86  Cal.  329,  24  P.  1021;  People  v.  Paulsell,  115  Cal.  6,  46 
P.  734. 

California.  When  the  defendant  relies  upon  no  distinct, 
separate  or  independent  fact,  such  as  insanity,  but  con- 
fines his  defense  to  the  original  transaction  upon  which 
the  charge  is  founded,  with  its  accompanying  circum- 
stances, the  burden  of  proof  never  shifts,  but  remains 
upon  the  people  throughout  the  whole  case  to  prove  the 
act  committed  a  criminal  one  beyond  a  reasonable  doubt. 
—People  v.  Ribolsi,  89  Cal.  492,  26  P.  1082. 
Colorado.  It  is  not  necessary  for  the  state  to  prove  be- 
yond a  reasonable  doubt  every  circumstance  offered  in  evi- 
dence and  tending  to  establish  the  ultimate  facts  or  cir- 
cumstances on  which  a  conviction  depends. — Clare  v. 
People.  9  Colo.  122,  10  P.  799. 

The  burden  is  upon  the  accused  to  prove  any  independent 
exculpatory  or  substantive  defense  upon  which  he  relies, 
but  if.  after  all  the  evidence  is  in.  it  is  found  upon  the 
whole  case  that  the  people  have  not  sustained  the  burden 
of  proof,  and  have  not  convinced  the  jury  of  the  defend- 
ant's guilt  beyond  a  reasonable  doubt  he  should  be  ac- 
quitted.—Cook  v.  People,  60  Colo.  263^,153  P.  214. 
Nebraska.  A  reasonable  doubt  does  not  consist  of  pos- 
sible or  conjectural  doubts  not  growing  out  of  the  evi- 
dence, but  is  one  which,  when  considering  the  evidence 
alone,  leads  the  juror  to  hesitate,  and  upon  which  he  would 
refuse  to  act  in  the  important  concerns  of  life. — Carr  v. 
State,   23   Neb.   749,    37   N.   W.    630. 


700  BURDEN  OF  PROOF 

Oklahoma.  The  burden  does  not  rest  upon  the  defendant 
to  establish  even  to  a  reasonable  probability  the  truth  of 
an  affirmative  defense,  but'if,  by  a  preponderance  of  evi- 
dence the  necessary  facts  are  established,  which,  taking 
into  consideration  the  whole  case,  create  a  reasonable 
doubt  of  the  guilt  of  the  defendant,  he  is  entitled  to  the 
benefit  of  it. — Maas  v.  Territory,  10  Okl.  716,  63  P.  960; 
McClatchey  v.  State,    (Okl.   Cr.),   152  P.  1136. 

Proof  of  a  Negative. 

Where  the  subject-matter  of  a  negative  averment  in  an 
indictment  or  information  relied  upon  by  defendant  as  a 
justification  or  excuse  lies  peculiarly  within  his  knowl- 
edge, the  general  rule  is  that  the  burden  of  proof  as  to 
such  justification  or  excuse  is  on  the  defendant. — Cleary 
v.  State,  56  Ark.  124,  19  S.  W.  313;  People  v.  Boo  Doo 
Hong,  122  Cal.  606,  55  P.  402. 

Colorado.  An  exception  to  the  rule  that  where  the  plain- 
tiff grounds  his  action  upon  negative  allegation,  the  bur- 
den of  showing  that  negation  is  upon  him,  is  found  where 
the  subject-matter  of  the  negative  is  such  as  not  to  admit 
of  convenient  proof,  and  it  may  be  reasonably  inferred, 
that,  if  untrue,  the  defendant  has,  peculiarly  within  his 
control,  the  means  of  showing  the  affirmative,  the  burden 
of  proof  is  upon  him;  yet  if  the  negative  involve  a  charge 
of  fraud,  or  criminal  omission  of  duty,  the  burden  of 
establishing  it  shall,  in  general,  be  upon  him  who  asserts 
it. — Machebeuf  v.  Clements,  2  Colo.  36. 
New  Mexico.  Where  proof  of  a  negative  is  a  matter  pe- 
culiarly within  defendant's  knowledge,  the  plaintiff  is  not 
required  to  establish  it,  and  when  his  contention  is  prima 
facie  established  it  devolves  on  the  defendant  to  show  the 
contrary. — Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Rodgers,  16 
N.   M.   120,    113   P.   805. 

Proof  of  sufficient  facts  necessarily  inconsistent  with  the 
position  of  the  adverse  party,  to  cause  the  court  to  say 
that  a  prima  facie  case  has  been  made  out  is  not  excused 
by  the  rule  that  where  the  facts  required  to  be  shown  are 
of  a  negative  character,  the  burden  of  evidence  may  some- 
times be  sustained  by  proof  rendering  probable  the  exis- 


BURDEN  OF  PROOF  701 

tence  of  the  negative  fact;  or  the  rule  to  the  effect  that 
where  knowledge  or  means  of  knowledge  are  almost  wholly 
with  the  party  not  having  the  burden  of  proof,  when  all  the 
evidence  within  the  power  of  the  moving  party  has  been 
produced,  the  burden  of  evidence  may  sometimes  shift 
to  the  party  having  such  knowledge  or  means  of  knowl- 
edge.—Young  v.  Woodman,  18  N.  M.  207,  135  P.  86. 
South  Dakota.  Where  the  subject-matter  of  a  negative 
averment  in  an  indictment  or  information  relied  upon  by 
defendant  as  a  justification  or  excuse  lies  peculiarly  with- 
in his  knowledge,  the  general  rule  is  that  the  burden  of 
proof  as  to  such  justification  or  excuse  is  on  the  defend- 
ant.—Territory  v.  Scott,  2  Dak.  212,  6  N.  W.  435. 

By  the  burden  of  proof  as  thus  employed,  is  meant  the 
duty  of  producing  evidence  in  order  to  meet  a  prima  facie 
case,  not  the  quantum  of  evidence  required  to  establish 
the  truth  of  any  given  proposition  or  issue. — State  v.  Car- 
lisle, 30  S.  D.  475,  139  N.  W.  127. 

Utah.  Where  proof  of  a  negative  is  a  matter  peculiarly 
within  defendant's  knowledge,  the  plaintiff  is  not  required 
to  establish  it,  but  when  his  contention  is  prima  facie 
established  it  devolves  on  the  defendant  to  show  con- 
trary.—Mclntyre  v.  Ajax  Min.  Co.,  20  Utah  323,  60  P.  552. 

Defense  of  Alibi  or  Insanity. 

The  general  burden  of  proof  on  the  prosecution  in  a 
criminal  case  to  prove  the  guilt  of  defendant  beyond  a 
reasonable  doubt  is  not  changed  when  defendant  under- 
takes to  prove  an  alibi,  and  he  need  not  prove  this  defense 
by  a  preponderance  of  the  evidence;  so  that  if  by  rea- 
son of  the  evidence  in  relation  to  such  alibi  the  jury  should 
doubt  the  defendant's  guilt,  he  would  be  entitled  to  an 
acquittal,  although  the  jury  might  not  be  able  to  say  that 
the  alibi  had  been  fully  proved. — Schultz  v.  Territory,  5 
Ariz.  239,  52  P.  352;  People  v.  Roberts,  122  Cal.  377,  55  P. 
137;  People  v.  Winters,  125  Cal.  325,  57  P.  1067;  McNa- 
mara  v.  People,  24  Colo.  61,  48  P.  541;  Casey  v.  State,  49 
Neb.  403,  68  N.  W.  643;  Beck  v.  State,  51  Neb.  106,  70  N. 
W.  498;  Borrego  v.  Territory,  8  N.  M.  446,  46  P.  349; 
Shoemaker  v.  Territory,  4  Okl.  118,  43  P.  1059;  Wright  v. 


702  BURDEN  OF  PROOF 

Territory,  5  Okl.  78,  47  P.  1069;  State  v.  Thornton,  10  S. 
D.  349,  73  N.  W.  196. 

Arkansas.  It  is  erroneous  for  the  court  to  instruct  that 
the  burden  of  proving  an  alibi  is  upon  defendant  and  un- 
less the  jury  find  that  defendant  has  established  such 
alibi  they  will  find  him  guilty. — Wells  v.  State,  102  Ark. 
627,   145   S.  W.   531. 

Although  the  burden  of  establishing  the  defense  of  alibi 
as  an  affirmative  fact  is  upon  the  defendant,  yet  if  the 
evidence  which  he  offers  in  support  of  that  defense,  taken 
in  connection  with  all  the  other  evidence  in  the  case,  is 
sufficient  to  raise  a  reasonable  doubt  of  the  defendant's 
guilt,  the  jury  should  acquit. — Woodland  v.  State,  110  Ark. 
15,  160  S.  W.  875. 

A  preponderance  of  evidence  suffices  to  sustain  the  de- 
fense of  alibi  or  insanity.— Ware  v.  State,  59  Ark.  379,  27 
S.  W.  485;  Wells  v.  State,  102  Ark.  627,  145  S.  W.  531; 
Bell  v.  State,  120  Ark.  530,  180  S.  W.  186. 
Idaho.  The  defenses  of  alibi,  insanity,  etc.,  need  not  be 
established  beyond  a  reasonable  doubt,  but  the  defendant 
has  the  burden  to  establish  his  defense  by  a  preponder- 
ance of  evidence;  if  then,  after  taking  the  whole  evi- 
dence in  the  case  into  consideration,  there  remains  a  rea- 
sonable doubt  of  guilt,  the  prosecution  must  fail. — People 
v.  Walter,  1  Ida.  386;  State  v.  Bogris,  26  Ida.  58,  144  P. 
789. 

Nevada.  A  party  interposing  a  defense  of  insanity  need 
do  no  more  than  establish  that  condition  of  mind  by  evi- 
dence which  preponderates  in  favor  of  insanity — taking 
everything  submitted  into  consideration,  enforcing  a  belief 
of  insanity.— State  v.  Lewis,  20  Nev.  334,  22  P.  241;  State 
v.  Nelson,  36  Nev.  403,  136  P.  377. 

New  Mexico.  The  burden  of  proving  an  alibi  is  upon  the 
defendant,  after  the  territory  has  made  out  a  prima  facie 
case,  to  the  extent,  at  least,  of  raising  a  reasonable  doubt 
of  guilt.— Wilburn  v.  Territory,  10  N.  M.  402,  62  P.  968. 

"After  the  territory  has  made  out  its  case,  it  devolves 
upon  the  accused  to  introduce  evidence,  if  he  has  any,  to 
prove  his  alibi,  if  he  relies  upon  such  a  defense.     In  that 


BURDEN  OF  PROOF  703 

sense  the  burden  is  upon  the  accused,  and  in  order  to 
maintain  it,  he  is  bound  to  establish  in  its  support  such 
facts  and  circumstances  as  are  sufficient,  when  consid- 
ered in  connection  with  all  the  other  evidence  in  the 
case,  to  create  in  the  minds  of  the  jury  a  reasonable 
doubt  of  his  guilt."— Wilburn  v.  Territory,   10  N.   M.  402, 

62  P.  968. 

The  prosecution  must  prove  the  defendant  guilty  be- 
yond a  reasonable  doubt.  Seeking  to  establish  an  alibi 
is  simply  rebutting  the  evidence  of  the  state  and  the 
defendant  does  not  have  the  burden  of  establishing  it  to 
the  satisfaction  of  the  jury.— State  v.  Smith,  21  N.  M.  173, 
153  P.  256. 

Oklahoma.  A  party  interposing  a  defense  of  insanity  need 
do  no  more  than  establish  that  condition  of  mind  by  evi- 
dence which  preponderates  in  favor  of  insanity— taking 
everything  submitted  into  consideration,  enforcing  a  belief 
of  insanity.— Maas  v.  Territory,   10  Okl.  716,  63  P.  960. 

Texas.  When  the  evidence  for  the  state  has  established 
beyond  a  reasonable  doubt  that  defendant  was  present  and 
participated  in  the  commission  of  an  offense,  and  is  guilty 
as  charged,  he  may  rebut  the  case  made  by  the  state  by 
proof  of  an  alibi:  but  unless  he  makes  such  proof,  or 
proves  some  other  matter  which  will  exculpate  him,  or 
raise  in  the  minds  of  the  jury  a  reasonable  doubt  of  his 
guilt,  his  conviction  must  follow.  It  is  not  required,  in 
order  to  entitle  a  defendant  to  an  acquittal  upon  the  de- 
fense of  alibi,  that  such  defense  should  be  established  be- 
yond a  reasonable  doubt.  The  rule  is  that  if  the  evi- 
dence adduced  in  the  case,  whether  in  behalf  of  the  state 
or  of  the  defendant,  engenders  in  the  minds  of  the  jury 
a  reasonable  doubt  as  to  the  defendant's  presence  at  the 
time  and  place  of  the  commission  of  the  offense,  the  de- 
fendant is  entitled  to  an  acquittal. — Gallaher  v.  State,  28 
Tex.  App.  247,  12  S.  W.  1087;  Saenz  v.  State,  (Tex.  Cr.  R.), 

63  S.  W.  317. 

Where  the  defense  in  a  criminal  prosecution  is  insan- 
ity, it  must  be  proved  by  a  preponderance  of  evidence,  but 
where  it  conclusively  appears   that   prior  to  the   commis- 


704  BURDEN  OF  PROOF 

sion  of  the  crime,  the  defendant  was  insane,  the  burden 
is  upon  the  prosecution  to  show  beyond  a  reasonable  doubt 
that  he  had  recovered  his  sanity  when  the  crime  was  com- 
mitted.—Witty  v.  State,  (Tex.  Cr.  R.),  171  S.  W.  229; 
Guerro  v.  State,  (Tex.  Cr.  R.),  171  S.  W.  731;  Burgess  v. 
State,  (Tex.  Cr.  R.),  181  S.  W.  465. 

Article  94.* 
presumption  of  innocence. 

If  the  commission  of  a  crime  is  directly  in  issue 
in  any  proceeding,  criminal  or  civil,  it  must  be 
proved  beyond  reasonable  doubt,  (a) 

The  burden  of  proving  that  any  person  has 
been  guilty  of  a  crime  or  wrongful  act  is  on  the 
person  who  asserts  it,  whether  the  commission 
of  such  act  is  or  is  not  directly  in  issue  in  the 
action. 

Illustrations. 

(a)  A  sues  B  on  a  policy  of  fire  insurance.  B  pleads  that 
A  burnt  down  the  house  insured.  B  must  prove  his  plea  as 
fully  as  if  A  were  being  prosecuted  for  arson.1 

(b)  A  sues  B  for  damage  done  to  A's  ship  by  inflammable 
matter  loaded  thereon  by  B  without  notice  to  A's  captain.  A 
must    prove   the   absence    of   notice.2 

(c)  The  question  in  1819  is,  whether  A  is  settled  in  the 
parish  of  a  man  to  whom  she  was  married  in  1813.  It  is 
proved  that  in  1812  she  was  married  to  another  person,  who 
enlisted  soon  afterwards,  went  abroad  on  service,  and  had 
not  been  heard  of  afterwards.  The  burden  of  proving  that 
the  first  husband  was  alive  at  the  time  of  the  second  mar- 
riage is  on  the  person  who  asserts  it.3 

(a)  [This,  however,  is  not  the  general  rule  in  this  country 
as  regards  civil  cases  where,  as  will  be  observed  from  the 
citations  given  under  this  article,  the  almost  universal  rule 
does  not  require  an  allegation  of  crime  to  be  proved  beyond 
reasonable   doubt.      4   Wigmore   Ev.,    §    2498.] 

JThurtell  v.  Beaumont,   1  Bing.   339. 

2Williams   v.    East   India  Co.,    3   Ea.    102,    198-199. 

3R.   v.   Twyning,   2   B.   &  A.   386. 

*  See  note  at  end  of  article. 


BURDEN  OF  PROOF  705 

PRESUMPTION  OF  INNOCENCE. 

Arizona.  All  persons  are  presumed  innocent  until  con- 
victed.—Crowell  v.  State,  15  Ariz.  66,  136  P.  279. 
Arkansas.  Between  conflicting  presumptions  that  which 
is  in  favor  of  the  innocence  of  the  accused  prevails. — Mc- 
Arthur  v.  State,  59  Ark.  431,  27  S.  W.  628;  Martin  v.  State, 
97  Ark.  212,  133  S.  W.  598. 

The  presumption  of  innocence  attends  every  defendant 
charged  with  any  crime  and  continues  until  it  is  over- 
come by  the  evidence  of  guilt. — Woodland  v.  State,  110 
Ark.  15,  160  S.  W.  875. 

California.  The  presumption  of  delivery  arising  from  the 
fact  of  possession  of  an  instrument,  cannot  be  indulged 
in  as  opposed  to  the  presumption  of  a  material  element 
of  a  serious  criminal  charge. — People  v.  Scott,  22  Cal. 
App.  54,  133  P.  496. 

Every  presumption  is  in  favor  of  innocence. — People  v. 
Phillips,   27   Cal.  App.   409,   150   P.   75. 

Colorado.  The  defendant  in  a  criminal  case  is  entitled  to 
every  presumption  of  innocence  consistent  with  the  evi- 
dence in  the  case. — Clarke  v.  People,  16  Colo.  511,  27  P. 
724. 

Kansas.  A  defendant  is  presumed  to  be  innocent  of  a 
crime  charged  and  of  every  ingredient  thereof,  until  his 
guilt  is  established  by  evidence  beyond  a  reasonable  doubt. 
It  rebuts  the  evidence  of  guilt  up  to  the  point  that  the 
latter,  notwithstanding  the  presumption,  convinces  the 
jury  beyond  a  reasonable  doubt  of  the  truth  of  the  charge. 
—State  v.  Reilly,  85  Kan.  175,  116  P.  481. 

Montana.  No  presumption  exists  that  a  person  acted  un- 
lawfully.— McLaughlin  v.  Bardsen,  50  Mont.  177,  145  P. 
954. 

Nebraska.  The  presumption  of  innocence  of  the  accused 
continues  with  him  until  his  guilt  is  established  by  the  evi- 
dence beyond  a  reasonable  doubt. — Flege  v.  State,  90  Neb. 
390,  133  N.  W.  431. 

When  two  equal  presumptions — one  in  favor  of  inno- 
cence, the  other  in  favor  of  guilt — are  presented,  the  for- 


706  BURDEN  OF  PROOF 

mer  is  to  be  preferred   and  applied. — Hayward   v.   State, 

97  Neb.  9,  149  N.  W.  105. 

Nevada.     The  accused   is  presumed  to   be  innocent  until 

the  presumption  is  overcome  by  the  evidence. — State  v. 

Grady,  32  Nev.  154,  104  P.  596. 

North    Dakota.     It  will  be  presumed  that  a  person  acted 

lawfully  and  did  not  do  an  unlawful  act  or  commit  a  crime. 

—Fried  v.  Olsen,  22  N.  D.  381,  133  N.  W.  1041. 

There  is  no  presumption  that  a  crime  has  been  com- 
mitted where  mangled  human  remains  are  found  on  the 
track  at  a  railroad  crossing. — Rober  v.  Northern  Pacific 
Ry.  Co.,  25  N.  D.  394,  142  N.  W.  22. 

Oklahoma.  The  only  purpose  of  the  presumption  of  inno- 
cence until  guilt  is  established  beyond  a  reasonable  doubt 
is  to  fix  the  burden  of  proof  in  the  first  instance,  and  to 
designate  that  the  duty  rests  upon  the  prosecution  to  pro- 
duce evidence  and  effect  persuasion,  beyond  a  reasonable 
doubt.— Cochran  v.  State,  4  Okl.  Cr.  R.  393,  114  P.  747. 
Oregon.  It  will  not  be  presumed  that  a  person  committed 
an  unlawful  act.— Crane  v.  Oregon  R.  &  N.  Co.,  66  Or.  317, 
133  P.  810. 

Texas.  A  defendant  in  a  criminal  prosecution  is  pre- 
sumed innocent  until  the  proof  shows  his  guilt  beyond  a 
reasonable  doubt.— Conger  v.  State,  68  Tex.  Cr.  R.  312, 
140  S.  W.  1112;  Witty  v.  State,  (Tex.  Cr.  R.),  171  S.  W. 
229. 

Washington.  The  presumption  of  innocence  of  the  ac- 
cused continues  with  him  throughout  the  trial. — State  v. 
Krug,  12  Wash.  288,  41  P.  126. 

Wyoming.  Every  person  is  presumed  innocent  until  his 
guilt  is  established  beyond  a  reasonable  doubt. — Dalzell 
v.  State,  7  Wyo.  450,  53  P.  297. 

PROOF   OF   COMMISSION   OF   CRIME   IN   CIVIL  CASES. 

A  fact  of  crime  in  issue  in  a  civil  action  is  to  be  deter- 
mined from  the  preponderance  of  the  evidence,  and  is  not 
required  to  be  proved  beyond  a  reasonable  doubt: 
California:     Hearne  v.  De  Young.  119  Cal.  670,  52  P.  150 
(libel;    merely  a  preponderance  sufficient). 


BURDEN  OF  PROOF  707 

Colorado:  Brown  v.  Tourtelotte,  24  Colo.  204,  50  P.  195 
(action  on  note;  defense  that  note  was  forged);  Smith 
v.  Smith,  16  Colo.  App.  333,  65  P.  401  (trespass  by  de- 
fendant's hogs,  it  being  a  misdemeanor  to  permit  such 
trespass). 

Kansas:  Kansas  Mill  Owners',  etc..  Ins.  Co.  v.  Rammels- 
berg,  58  Kan.  531,  50  P.  446  (evidence  of  fraud  in  procur- 
ing written  instrument  should  be  clear,  decided  and  satis- 
factory). 

Montana:  Wellcome,  In  re.  23  Mont.  450,  59  P.  445  (dis- 
barment proceedings,  on  charge  of  bribery). 
Nebraska:  Dukehart  v.  Coughman.  36  Neb.  412,  54  N. 
W.  680  (prosecution  for  bastardy) ;  Nebraska  State  Bank 
v.  Johnson,  51  Neb.  546,  71  N.  W.  294  (suit  to  recover 
possession  of  personal  property  alleged  to  have  been  stolen 
by  defendant). 

Oregon:  First  Nat.  Bank  v.  Commercial  Assur.  Co.,  33  Or. 
43,  52  P.  1050  (result  should  follow  preponderance  of  evi- 
dence, even  though  the  result  imputes  a  crime). 
Texas:  Mott  v.  Spring  Garden  Ins.  Co..  (Tex.  Civ.  App). 
154  S.  W.  658  (action  on  fire  insurance  policy;  defense  that 
plaintiff  procured  the  insurance  to  defraud  the  company 
and  then  burned  the  house). 

Washington:  Hart  v.  Niagara  Ins.  Co..  6  Wash.  620,  38 
P.  213  (action  on  fire  insurance  policy:  defense  of  wilful 
burning). 

California.  If  the  defendant,  in  an  action  for  slanderous 
words  in  which  a  crime  is  imputed  to  the  plaintiff,  justi- 
fies on  the  ground  that  they  were  true,  he  must  prove  the 
plaintiff  guilty  of  the  crime  imputed  to  him.  by  testimony 
sufficient  to  convict  him  of  the  crime  on  a  criminal  trial. 
— Merk  v.  Gelzhaeuser.   50  Cal.  631. 

It  may  require  more  evidence  to  overthrow  a  presump- 
tion that  one  has  not  committed  an  affirmative  or  posi- 
tive and  active  fraud  than  that  he  has  not  denied  an  hon- 
est debt;  but  such  a  difference  should  be  called  to  the 
attention  of  the  jury  in  language  of  careful  discrimination, 
lest  they  should  he  led  to  the  belief  that  a  mere  prepon- 
derance of  the  evidence  will  not  justify  a  verdict  of  guilty 


708  BURDEN  OF  PROOF 

of  fraud  in  civil  cases. — Bullard  v.  His  Creditors,  56  Cal. 
600. 

Texas.  "There  is  no  force  in  the  position  that,  because  the 
facts  of  this  case  involve  a  criminal  act  (maliciously  poi- 
soning plaintiff's  hogs),  there  should  be  a  greater  or  more 
certain  degree  of  proof  than  is  required  in  other  civil 
actions.  A  party  holding  the  affirmative  of  an  issue  is 
only  required  to  adduce  a  preponderance  of  evidence  as 
will  satisfy  the  minds  of  the  jury  of  the  truth  of  the  facts 
in  issue."— Heiligmann  v.  Rose,  81  Tex.  222,  16  S.  W.  931. 


NOTE  xxxvi. 

(To  Article  94.) 

The  presumption  of  innocence  belongs  principally  to  the 
Criminal  Law,  though  it  has,  as  the  illustrations  show,  a 
bearing  on  the  proof  of  ordinary  facts.  The  question,  "What 
doubts  are  reasonable  in  criminal  cases?"  belongs  to  the 
Criminal    Law. 


ARTICLE  95. 
ON  WHOM   THE  GENERAL   BURDEN   OF  PROOF   LIES. 

The  burden  of  proof  in  any  proceeding  lies  at 
first  on  that  party  against  whom  the  judgment  of 
the  Court  would  be  given  if  no  evidence  at  all  were 
produced  on  either  side,  regard  being  had  to  any 
presumption  which  may  appear  upon  the  plead- 
ings, (a)  As  the  proceeding  goes  on,  the  burden 
of  proof  may  be  shifted  from  the  party  on  whom 
it  rested  at  first  by  his  proving  facts  which  raise 
a  presumption  in  his  favor,  (b) 

(a)  [Veiths  v.  Hagge,  8  Iowa  163;  Amos  v.  Hughes,  1  M. 
&  R.   464.] 

(b)  1  Ph.  Ev.  552;  T.  E.  ss.  338-339;  [4  Wigmore  Ev.,  § 
2489];  Starkie,  586-587  &  748;  Best,  ss.  265-268. 


BURDEN  OF  PROOF  709 


Illustrations. 

(a)  It  appears  upon  the  pleadings  that  A  is  indorsee  of  a 
bill  of  exchange.  The  presumption  is  that  the  indorsement 
was  for  value,  and  the  party  interested  in  denying  this  must 
prove  it.1 

(b)  A,  a  married  woman,  is  accused  of  theft  and  pleads 
not  guilty.  The  burden  of  the  proof  is  on  the  prosecution. 
She  is  shown  to  have  been  in  possession  of  the  stolen  goods 
soon  after  the  theft.  The  burden  of  proof  is  shifted  to  A. 
She  shows  that  she  stole  them  in  the  presence  of  her  hus- 
band. The  burden  of  proving  that  she  was  not  coerced  by 
him   is  shifted  on  to  the  prosecutor.2 

(c)  A  is  indicted  for  bigamy.  On  proof  by  the  prosecu- 
tion of  the  first  marriage,  A  proves  that  at  the  time  he  was 
a  minor.  This  throws  on  the  prosecution  the  burden  of  prov- 
ing the  consent   of  A's  parents.* 

(d)  A  deed  of  gift  is  shown  to  have  been  made  by  a  client 
to  his  solicitor.  The  burden  of  proving  that  the  transaction 
was   in   good   faith   is  on   the   solicitor.4 

(e)  It  is  shown  that  a  hedge  stands  on  A's  land.  The 
burden  of  proving  that  the  ditch  adjacent  to  it  Is  not  A's 
also  is  on  the  person  who  denies  that  the  ditch  belongs  to  A.8 

(f)  A  proves  that  he  received  the  rent  of  land.  The  pre- 
sumption is,  that  he  is  owner  in  fee-simple,  and  the  burden 
of  proof  is  on  the  person  who  denies  it.9 

(g)  A  finds  a  jewel  mounted  in  a  socket,  and  gives  it  to 
B  to  look  at.  B  keeps  it,  and  refuses  to  produce  it  on  notice, 
hut  returns  the  socket.  The  burden  of  proving  that  It  Is 
not  as  valuable  a  stone  of  the  kind  as  would  go  into  the 
socket  is  on  B.T 


'Mills    v.    Barber,    1    M.   &  W.    425. 

»1    Russ.    Cri.    23:    and    2,337. 

»R.    v.   Butler.    1    R.   &   R.    61. 

M  Story  TCq.  Juris,  s.  310,  n.  1.  Quoting  Hunter  v.  Atkins. 
3  M.  &  K.  113.  [And  the  presumption  is  against  the  solicitor. 
Brown  v.   Bulkley,   13  N.   J.  Eq.  451.] 

•Guy  v.  "West,   Selw.   N.   P.   1297. 

"Doe  v.   Coulthred,    7   A.   &  E.    235. 

TArmoury  v.  Delamlrie,  1  S.  L.  C.  357.  [This  rule  rests  upon 
the  doctrine  that  the  presumption  is  against  the  party  who 
can,  and  will  not,  produce  evidence  to  explain  an  ambiguity. 
But  where  a  party  is  not  shown  to  be  able  to  produce  such 
evidence,  the  rule  is  different.  Thus,  when  the  delivery  of 
a  bank-note  is  proved  without  proof  of  its  denomination, 
the  presumption  is  in  favor  of  the  defendant,  that  it  is  the 
smallest   in  circulation.     Lawton   v.   Sweeney,   s   .Jur.   964.1 


710  BURDEN  OF  PROOF 

(h)  A  sues  B  on  a  policy  of  insurance,  and  shows  that  the 
vessel  insured  went  to  sea,  and  that  after  a  reasonable  time 
no  tidings  of  her  have  been  received,  but  that  her  loss  had 
been  rumored.  The  burden  of  proving  that  she  has  not 
foundered  is  on  B.s 

ON   WHOM    IS   BURDEN    OF   PROOF. 

California.  Where  it  appears  that  a  party  has  failed  to 
perform  a  duty  imposed  by  law,  the  burden  is  cast  upon 
him  to  excuse  his  conduct  in  order  to  relieve  himself  from 
the  penalty. — Chadbourne's  Estate,  In  re,  15  Cal.  App.  363, 
114  P.  1012. 

Colorado.  In  an  action  on  a  contract  claiming  full  per- 
formance, where  a  recovery  is  allowed  on  a  substantial 
performance,  less  such  amount  as  would  be  required  to 
compensate  the  defendant,  the  burden  is  upon  the  plaintiff 
to  prove  such  substantial  performance  as  will  entitle  him 
to  so  recover,  and  also  establish  the  amount  necessary  to 
compensate  the  defendant  for  failure  of  performance. — 
Morris  v.  Hokosona,  26  Colo.  App.  251,   143  P.   826. 

North  Dakota.  Where  one  seeks  to  rescind  a  contract  for 
fraud,  the  burden  of  proving  his  knowledge  of  the  facts 
giving  rise  to  the  right,  and  of  the  time  of  acquiring  such 
knowledge,  rests  on  the  adverse  party. — Liland  v.  Tweto, 
19  N.  D.  551,  125  N.  W.  1032. 

The  term  "burden  of  proof"  is  generally  used  in  two 
senses;  the  first  means  that  a  party  will  lose,  unless  he 
shall  have  brought  down  his  end  of  the  scale,  by  placing 
thereon  a  weight  of  evidence  sufficient,  first,  to  destroy 
the  equilibrium,  and,  second,  to  overbalance  any  weight 
of  evidence  placed  on  the  other  end.  In  the  second  sense, 
the  necessity  which  rests  on  a  party  at  any  particular  time 
to  create  a  prima  facie  case  in  his  own  favor  or  to  over- 
throw one  when  created  against  him.  This  necessity  or 
burden  devolves  upon  one  party,  whenever,  under  the  evi- 
dence, or  applicable  presumptions,  or  a  combination  of 
these,  the  other  party  is  entitled  as  a  matter  of  law  to 
a  ruling  in  his  favor.     The  latter  sense  is  sometimes  ex- 

sKoster   v.   Reed,    6   B.   &  C.    19. 


BURDEN  OF  PROOF  711 

pressed  as  "burden  of  evidence"  or  "weight  of  evidence." 
—Guild  v.  More,  32  N.  D.  432,  155  N.  W.  44. 

Oregon.  Where  two  presumptions  balance  each  other  the 
plaintiff  in  order  to  recover  must  produce  other  evidence. 
—State  v.  Olcott,  67  Or.  214,  135  P.  902. 
Texas.  Where  the  accused  has  been  found  insane  by  the 
judgment  of  a  court  the  condition  is  presumed  to  continue, 
and  when  subsequently  tried  for  a  crime  the  burden  is 
upon  the  prosecution  to  establish  that  he  had  recovered 
his  reason  at  the  time  of  the  commission  of  the  crime 
charged.— Hunt  v.  State,  33  Tex.  Cr.  R.  252,  26  S.  W.  206; 
Wisdom  v.  State.  42  Tex.  Cr.  R.  583,  61  S.  W.  26;  Witty 
v.  State,   (Tex.  Cr.  R.),  153  S.  W.  1146. 

Utah.  Whenever  the  existence  of  any  fact  or  facts  is 
necessary  in  order  that  a  party  may  make  out  his  case 
or  establish  a  defense,  the  burden  of  proof — the  onus  pro- 
bandi — is  on  such  party  to  show  the  existence  of  such  fact 
or  facts.  That  burden  does  not  shift  and  is  unaffected  by 
the  evidence  as  the  trial  proceeds.  After  all  the  evidence 
is  in.  the  one  having  the  burden  will  lose  unless  the  evi- 
dence bears  more  heavily  in  his  favor. — Leavitt  v.  Thurs- 
ton, 38  Utah  351,  113  P.  77. 

Washington.  When  a  defendant  unnecessarily  pleads  an 
affirmative  defense  the  burden  of  proof  is  not  thereby  cast 
upon  him. — Davidson  Fruit  Co.  v.  Produce  Distributors  Co., 
74  Wash.  551,  134  P.  510. 

SHIFTING  OF   BURDEN. 

North  Dakota.  In  an  action  by  a  passenger  against  a  car- 
rier for  personal  injuries,  the  plaintiff  has  the  burden  of 
proof,  but  when  he  establishes  that  the  injury  was  caused 
by  the  acts  of  the  carrier  in  the  operation  of  the  train, 
he  raises  a  presumption  of  negligence,  and  the  burden  of 
the  evidence  is  thereupon  shifted  upon  the  defendant,  and 
lies  to  rebut  that  presumption  by  showing  that  it  was  not 
negligent,  or  that  the  plaintiff,  by  the  exercise  of  ordi- 
nary care  on  his  part,  could  have  avoided  the  consequences 
to  himself  of  the  negligence  of  the  carrier. — Guild  v. 
More,  32  N.  D.  432,  155  X.  W.  44. 


712  BURDEN  OF  PROOF 

Oklahoma.  The  duty  of  proceeding  to  adduce  evidence 
after  a  prima  facie  case  has  been  established  shifts  to  the 
party  with  the  negative  of  the  issue.  This,  however,  is 
not  a  shifting  of  the  burden  of  proof,  as  it  remains  where 
the  pleadings  placed  it,  but,  after  a  prima  facie  case  has 
been  established,  the  burden  of  producing  the  evidence 
necessary  to  overcome  the  prima  facie  case  shifts  to  the 
defendant,  and  this  is  termed  a  shifting  of  the  burden  of 
evidence. — Standard  Marine  Ins.  Co.  v.  Traders'  Compress 
Co.,  46  Okl.  356,  148  P.  1019. 

Texas.  Whoever  has  the  affirmative  of  the  issue  as  de- 
termined by  the  pleadings  has  the  burden  of  proof,  which 
never  shifts. — Barnes  v.  McCarthy,  (Tex.  Civ.  App.),  132 
S.  W.  85. 

The  burden  remains  upon  the  plaintiff  to  prove  all  mat- 
ters essential  to  establish  his  case  and  does  not  shift  to 
defendant,  even  though  the  plaintiff  has  established  his 
case  prima  facie.  It  is  only  where  plaintiff  has  made  out 
his  case  which  defendant  seeks  to  overthrow  by  proof  of 
some  substantive  defense  that  defendant  has  the  burden 
and  then  only  to  prove  the  matters  constituting  such  de- 
fense. A  plaintiff  seeking  to  recover  for  damages  occa- 
sioned by  cutting  timber  claimed  by  him,  must  not  only 
prove  ownership  of  the  land,  but  that  the  timber  taken 
was  his.  Where  defendant  claimed  to  have  purchased  the 
timber  of  a  remote  grantor  of  plaintiff,  defendant  did  not 
have  the  burden  to  show  that  the  timber  cut  was  included 
in  the  grant. — Kirby  Lumber  Co.  v.  Stewart,  (Tex.  Civ. 
App.),  141  S.  W.  295. 

In  criminal  cases  the  burden  of  proof  is  generally  on 
the  prosecution,  still  in  some  instances  the  burden  may 
shift  to  defendant,  as  where  nonage  or  insanity  is  alleged, 
but  not  in  any  case  until  after  the  state  has  made  out 
a  case  overcoming  the  presumption  of  innocence  and  rea- 
sonable doubt.— Hawkins  v.  State,  (Tex.  Cr.  R.),  179  S. 
W.  448. 

The  burden  of  proof  never  shifts  from  the  plaintiff  to 
the  defendant,  but  is  upon  the  plaintiff  throughout  the 
trial  to  establish,  by  a  preponderance  of  all  the  evidence, 


BURDEN  OF  PROOF  713 

the  affirmative  of  the  issue  or  issues  upon  which  he  relies 
for  a  recovery. — Powell  v.  Powell,  (Tex.  Civ.  App.),  170 
S.  W.  Ill;  Boswell  v.  Pannell,   (Tex.),  180  S.  W.  593. 

Washington.  When  proof  is  offered  to  rebut  a  presump- 
tion of  fact,  the  burden  shifts,  and  it  is  incumbent  upon 
the  opposing  party  to  sustain  his  case  by  competent  evi- 
dence.— Scarpelli  v.  Washington  Water  P.  Co.,  63  Wash. 
18,  114  P.  870;  Nicholson  v.  Neary,  77  Wash.  294,  137  P. 
492. 

Article  96. 
burdex  of  proof  as  to  particular  fact. 

The  burden  of  proof  as  to  any  particular  fact 
lies  on  that  person  who  wishes  the  Court  to  believe 
in  its  existence,  unless  it  is  provided  by  any  law 
that  the  burden  of  proving  that  fact  shall  lie  on 
any  particular  person; (a)  but  the  burden  may 
in  the  course  of  a  case  be  shifted  from  one  side 
to  the  other,  and  in  considering  the  amount  of 
evidence  necessary  to  shift  the  burden  of  proof 
the  Court  has  regard  to  the  opportunities  of 
knowledge  with  respect  to  the  fact  to  be  proved 
which  may  be  possessed  by  the  parties  respect- 
ively. 

Illustrations. 

(a)  A  prosecutes  B  for  theft,  and  wishes  the  court  to  be- 
lieve that  B  admitted  the  theft  to  C.  A  must  prove  the  ad- 
mission. 

B  wishes  the  court  to  believe  that,  at  the  time  in  question, 
he  was  elsewhere.     He  must  prove  It. 

(b)  A,  a  shipowner,  sues  B,  an  underwriter,  on  a  policy 
of  Insurance  on  a  ship.  B  alleges  that  A  knew  of  and  con- 
cealed from  B  material  facts.     B  must  give  enough  evidence 

(a)   For  instances  of  such  provisions,  see  T.  E.  ss.  345-346. 


714  BURDEN  OF  PROOF 

to  show  upon  A  the  burden  of  disproving  his  knowledge;  but 
slight    evidence    will    suffice    for    this    purpose.1 

(c)  In  actions  for  penalties  under  the  old  game  laws, 
though  the  plaintiff  had  to  aver  that  the  defendant  was  not 
duly  qualified,  and  was  obliged  to  give  general  evidence  that 
he  was  not,  the  burden  of  proving  any  definite  qualification 
was  on   the  defendant.2 

BURDEN   AS  TO   PARTICULAR    FACTS. 

Ordinarily  the  burden  of  proof  as  to  any  particular  fact 
rests  upon  the  party  asserting  it: 

Arkansas:  Henderson  v.  E.  W.  Emerson  Co.,  105  Ark. 
697,  151  S.  W.  251  (plaintiff,  claiming  that  a  partnership 
for  the  buying  and  selling  of  cotton  seed  was  to  continue 
for  the  whole  season  of  1910,  has  the  burden  of  proof, 
though  the  defendant  alleges  that  the  partnership  was 
only  for  the  purchase  and  sale  of  two  carloads). 
California:  Fawcett  v.  Gregg,  26  Cal.  App.  727,  148  P.  524 
(claim   of   partnership). 

Oklahoma:  Fifth  Ave.  Library  Society  v.  Phillips,  39  Okl. 
799,  136  P.  1076  (party  relying  on  breach  of  warranty,  to 
prove   both   warranty    and   breach). 

Oregon:  Peaslee  v.  Gordon  Falls  Elec.  &  Mfg.  Co.,  68 
Or.  244,  135  P.  521  (where  each  allegation  of  complaint 
was  denied  by  answer,  it  is  incumbent  on  plaintiff  to  make 
a  prima  facie  case  as  to  each  material  fact). 
Texas:  Texas  Power  &  Light  Co.  v.  Bird,  (Tex.  Civ. 
App.),  165  S.  W.  8  (burden  on  plaintiff  to  prove  lack  of 
contributory  negligence,  where  he  has  alleged  facts  which, 
if  not  excused,  show  contributory  negligence,  and  alleges 
certain    other    facts    which    exonerate   him). 

The  burden  of  proving  contributory  negligence  of  a  plain- 
tiff suing  for  damages  on  account  of  personal  injuries  rests 

'Elkin  v.  Janson,  13  M.  &  W.  655.  See,  especially,  the 
judgment  of  Alderson,   B.,   663-666. 

21  Ph.  Ev.  556,  and  cases  there  quoted.  The  illustration  is 
founded  more  particularly  on  R.  v.  Jarvis,  in  a  note  to  R. 
v.  Stone,  1  Ea.  639,  where  Lord  Mansfield's  language  appears 
to  imply  what  is  stated  above.  Shafer  v.  State,  7  Tex.  App. 
239;  Com.  v.  McKie,  1  Gray,   61;  State  v.  Jones,  50  N.  H.   370. 


BURDEN  OF  PROOF  715 

on  defendant. — Nat'l  Fuel  Co.  v.  Maccia,  25  Colo.  App.  441, 
139  P.  22  (by  statute,  under  Employer's  Act) ;  Jones  v. 
Joplin  &  P.  Ry.  Co.,  91  Kan.  282,  137  P.  796;  St.  Louis, 
B.  &  M.  Ry.  Co.  v.  Vernon,  (Tex.  Civ.  App.),  161  S.  W. 
84;  Peden  Iron  &  Steel  Co.  v.  Jaimes,  (Tex.  Civ.  App.), 
162  S.  W.  965;  Texas  Traction  Co.  v.  Wiley,  (Tex.  Civ. 
App.),  164  S.  W.  1028;  Wells  Fargo  &  Co.  v.  Benjamin, 
(Tex.  Civ.  App).  165  S.  W.  120;  J.  M.  Guffey  Petroleum 
Co.  v.  Dinwiddle,    (Tex.   Civ.  App.),   168   S.  W.  439. 

A  party  interposing  a  defense  of  insanity  need  do  no 
more  than  establish  that  condition  of  mind  by  evidence 
which  preponderates  in  favor  of  insanity — taking  every- 
thing submitted  into  consideration,  enforcing  a  belief  of 
insanity.— People  v.  Dillon,  8  Utah  97,  30  P.  150;  State  v. 
Clark,  34  Wash.  485,  76  P.  98. 

Oklahoma.  The  burden  of  proof  is  upon  the  plaintiff  to  show 
each  and  every  particular  fact  necessary  to  make  out  his 
cause  of  action  by  a  preponderance  of  the  evidence,  and 
the  burden  is  upon  the  defendant  to  establish  the  affirma- 
tive allegations  or  defense  set  up  in  the  answer  by  a  pre- 
ponderance of  the  evidence. — Missouri,  K.  &  T.  Ry.  Co. 
v.  Horton,  28  Okl.  815,  119  P.  233. 

SHIFTING  BURDEN  OF  PROOF. 
Idaho.  Where  a  statute  provides  that  upon  a  certain  fact 
being  shown  certain  other  presumptions  of  law  arise,  or 
where  one  fact  is  shown  the  same  is  prima  facie  evidence 
of  another,  it  means  that  such  prima  facie  presumption 
or  prima  facie  evidence  is  sufficient  to  go  to  a  jury  to 
prove  such  fact,  but  is  not  conclusive.  Such  statutes  are 
enacted  for  the  purpose  of  shifting  the  burden  of  proof; 
but,  if  the  adverse  party  does  not  rebut  the  presumption, 
it  is  for  the  jury  to  exercise  their  judgment  upon  the 
weight,  sufficiency,  and  credibility  of  the  evidence. — State 
v.  Adams,  22  Ida.  485,  126  P.  401. 

NOTE   XXXV. 

(To   Chapter  XIII.) 

in    this   and    the    following   chapter    many    matters   usually 

introduced    into    treatises    on    evidi  omitted,    because 

tiny   appear    to   belong   either    to    the    subject    of   pleading,    or 


716  BURDEN  OF  PROOF 


to  different  branches  of  Substantive  Law.  For  instance,  the 
rules  as  to  the  burden  of  proof  of  negative  averments  in 
criminal  cases  (1  Ph.  Ev.  555,  etc.;  3  Russ.  on  Cr.  276-279) 
belong  rather  to  criminal  procedure  than  to  evidence.  Again, 
in  every  branch  of  Substantive  Law  there  are  presumptions, 
more  or  less  numerous  and  important,  which  can  be  under- 
stood only  in  connection  with  those  branches  of  the  law. 
Such  are  the  presumptions  as  to  the  ownership  of  property, 
as  to  consideration  for  a  bill  of  exchange,  as  to  many  of  the 
incidents  of  the  contract  of  insurance.  Passing  over  all 
these,  I  have  embodied  in  Chapter  XIV  those  presumptions 
only  which  bear  upon  the  proof  of  facts  likely  to  be  proved 
on  a  great  variety  of  different  occasions,  and  those  estoppels 
only  which  arise  out  of  matters  of  fact,  as  distinguished 
from   those   which   arise  upon   deeds  or  judgments. 


Article  97. 

bfrden  of  proving  fact  to  be  proved  to  make  evidence 
admissible. 

The  burden  of  proving  any  fact  necessary  to  be 
proved  in  order  to  enable  any  person  to  give  evi- 
dence of  any  other  fact  is  on  the  person  who 
wishes  to  give  such  evidence. 

Illustrations. 

(a)  A  wishes  to  prove  a  dying  declaration  by  B. 

A  must  prove  B's  death,  and  the  fact  that  he  had  given 
up  all  hope  of  life  when  he  made  the  statement. 

(b)  A  wishes  to  prove,  by  secondary  evidence,  the  contents 
of   a    lost    document. 

A   must  prove   that   the   document  has   been   lost. 

BURDEN  OF  PROVING  PRELIMINARY  FACTS. 

Arkansas.  A  prima  facie  conspiracy  should  be  established 
to  admit  evidence  of  the  acts  and  declarations  of  the  al- 
leged conspirators. — Cantrell  v.  State,  117  Ark.  233,  174 
S.  W.   521. 

If  all  the  evidence  shows  that  a  conspiracy  actually  ex- 
isted, it  is  not  material  whether  the  conspiracy  is  estab- 
lished before  or  after  the  detailing  in  evidence  of  the  acts 


BURDEN  OF  PROOF  717 

and  declarations  of  the  conspirators. — Turner  v.  State, 
121  Ark.  40,  180  S.  W.  211;  Hearne  v.  State,  121  Ark.  460, 
181  S.  W.  291. 

California.  The  prosecution  must  show  that  a  confession 
offered  as  evidence  was  made  voluntarily. — People  v. 
Burns,  27  Cal.  App.  227,  149  P.  605. 

Montana.  Where  it  is  desired  to  offer  secondary  evidence 
of  the  contents  of  an  alleged  lost  document,  the  party  de- 
siring to  offer  such  evidence  has  the  burden  to  prove  the 
loss  of  the  original.— Bond  v.  Hurd,  31  Mont.  514,  78  P.  579. 
Nebraska.  A  confession  alleged  to  have  been  made  by 
defendant  in  a  criminal  prosecution  must  be  shown  to 
have  been  voluntary, '  otherwise  it  is  inadmissible. — Jones 
v.  State,  97  Neb.  151,  149  N.  W.  327. 

Oklahoma.  Prima  facie  proof  of  the  conspiracy  must  be 
made  before  the  statements  of  the  conspirators  are  admis- 
sible in  evidence. — Campbell  v.  Newton  &  Driskill,  (Okl.), 
152  P.  841. 

One  desiring  to  offer  secondary  evidence  of  the  contents 
of  a  document  must  satisfactorily  show  that  the  original 
is  unavailable. — Missouri.  O.  &  G.  Ry.  Co.  v.  West,  (Okl.), 
151  P.  212. 

Oregon.  It  devolves  upon  the  prosecution  to  show  that  a 
confession  offered  in  evidence  was  made  voluntarily. — 
State  v.  Spanos,  66  Or.  118,  134  P.  6. 

Texas.  Proof  of  a  combination  or  plot  must  precede  the 
introduction  in  evidence  of  the  declarations  of  the  alleged 
conspirators.— Serrato  v.  State,  (Tex.  Cr.  R.),  171  S.  W. 
1133. 

Where  a  judgment  is  assigned  by  an  alleged  agent  his 
authority  to  so  do  must  be  shown  before  the  assignment 
will  be  admissible  in  evidence. — Needham  v.  Cooney,  (Tex. 
Civ.  App.),  173  S.  W.  979. 

It  is  incumbent  upon  the  party  seeking  to  introduce  sec- 
ondary evidence  of  the  contents  of  an  alleged  lost  docu- 
ment to  first  show  its  loss. — Bunker  v.  State,  (Tex.  Cr.  R.). 
177  S.  W.   108. 

Utah.  If  the  acts  or  conduct  of  alleged  conspirators  are 
reasonably  indicative  that  a  conspiracy  exists  it  is  suffl- 


718  BURDEN  OF  PROOF 

cient  to  admit  evidence  of  their  acts  and  declarations. 
The  conspiracy  need  not  be  established  beyond  peradven- 
ture.— State  v.  Inlow,  44  Utah  485,  141  P.  530. 
Washington.  Where  it  sought  to  make  documents  issued 
by  an  agent  evidence  against  the  principal  it  is  necessary 
to  show  the  authority  of  the  agent. — McDonald  v.  New 
World  Life  Ins.  Co.,  76  Wash.  488,  136  P.  702. 

Article    97A. 

BURDEN    OF    PROOF    WHEN    PARTIES    STAND    IN    A    FIDUCIARY 
RELATION. 

When  persons  stand  in  a  relation  to  each  other 
of  such  a  nature  that  the  one  reposes  confidence 
in  the  other,  or  is  placed  by  circumstances  under 
his  authority,  control  or  influence,  when  the  ques- 
tion is  as  to  the  validity  of  any  transaction  be- 
tween them  from  which  the  person  in  whom  con- 
fidence is  reposed  or  in  whom  authority  or  influ- 
ence is  vested  derives  advantage,  the  burden  of 
proving  that  the  confidence,  authority  or  influ- 
ence was  not  abused,  and  that  the  transaction 
was  in  good  faith  and  valid,  is  on  the  person  in 
whom  such  confidence  or  authority  or  influence  is 
vested,  and  the  nature  and  amount  of  the  evidence 
required  for  this  purpose  depends  upon  the  nature 
of  the  confidence  or  authority,  and  on  the  char- 
acter of  the  transaction,  (a) 

BURDEN  OF  PROOF  IN   FIDUCIARY   RELATIONS. 

In  General. 
Arkansas.     Where    a    parent    accepts    a    conveyance    from 
his  daughter,  the  deed  will  not  be  permitted  to  stand  unless 

(a)    [4   Wigmore   Ev„    §    2503.] 


BURDEN  OF  PROOF  719 

the  transaction  is  characterized  by  the  utmost  fairness 
and  good  faith  on  the  part  of  the  parent. — Giers  v.  Hud- 
son, 102  Ark.  232,   143  S.  W.  916. 

Where  a  controversy  arises  through  dealings  between 
guardian  and  ward,  the  latter  must  clear  the  transaction 
from  every  shadow  of  suspicion. — Waldstein  v.  Barnett, 
112  Ark.  141,   165  S.  W.   459. 

Nebraska.  A  relation  of  trust  and  confidence  arises  and 
continues  with  the  existence  of  the  marital  tie  between 
parties,  and  where  -the  contract  of  the  wife  to  or  with  the 
husband  is  sought  to  be  enforced,  and  the  coverture  is  in- 
terposed as  a  defense,  coupled  with  the  plea  of  the  exer- 
cise by  the  husband  of  undue  influence  by  the  husband 
on  the  wife  in  obtaining  the  execution  of  such  contract, 
the  burden  is  on  the  plaintiff  to  establish  that  no  unfair 
advantage  was  taken,  or  undue  influence  exercised,  by 
the  husband.— Stenger  Benev.  Ass'n  v.  Stenger,  54  Neb. 
427,  74  N.  W.  846. 

Washington.  Where  an  attorney  obtains  a  benefit  from 
dealing  with  trust  property  of  his  client,  the  burden  is  on 
the  attorney  to  show  that  his  dealing  with  the  subject  of 
the  trust  was  free  from  all  reasonable  grounds  for  sus- 
picion, although  the  allegations  of  wrong-doing  are  made 
by  the  client— Hetrick  v.  Smith.  67  Wash.  664,  122  P.  363. 

Dealings   Between   Attorney  and   Client. 

Dealings  between  attorney  and  client,  whereby  the  for- 
mer obtains  a  benefit  at  the  expense  of  the  latter,  will  be 
closely  scrutinized,  and  will  not  be  upheld  where  it  ap- 
pears that  the  attorney  obtained  an  unfair  advantage  over 
his  client: 

Arkansas:  Thweatt  v.  Freeman.  73  Ark.  575,  84  S.  W. 
720  (burden  on  attorney  to  show  absence  of  undue  in- 
fluence in  purchase  of  land  from  client) ;  Weil  v.  Fineran. 
78  Ark.  87,  93  S.  W.  568  (action  by  attorney  for  breach 
of  contract  of  employment,  plaintiff  claiming  that  she  was 
induced  by  fraud  to  enter  into  it;  burden  on  plaintiff  to 
show  consent  was  obtained). 


720  BURDEN  OF  PROOF 

California:  Felton  v.  Le  Breton,  92  Cal.  457,  28  P.  490 
(burden  on  attorney  to  show  that  he  fully  advised  client 
of  legal  effects  and  consequences  of  an  act  whereby  there 
is  a  benefit  to  attorney  at  expense  of  client) ;  Cooley  v. 
Miller  &  Lux,  156  Cal.  510,  105  P.  981  (contract  between 
attorney  and  client  presumed  to  be  made  under  undue  in- 
fluence);  Black  v.  Riley,  20  Cal.  App.  199,  128  P.  764 
(same);  Cooley  v.  Miller  &  Lux,  168  Cal.  120,  142  P.  83 
(any  transaction  between  attorney  and  clients  after  the 
employment,  whereby  he  gains  any  advantage,  would  be 
attended  by  the  presumption  that  it  was  entered  into  with- 
out sufficient  consideration  and  by  undue  influence) ;  Me- 
tropolis Trust  &  Sav.  Bank  v.  Monnier,  169  Cal.  592,  147 
P.  265  (prima  facie  case  in  support  of  the  defense  that  the 
note  and  mortgage  sued  on  had  been  obtained  through  the 
exercise  of  undue  influence  would  be  made  out  by  proof 
that  the  payee,  prior  to  and  at  the  time  he  took  such  note 
and  mortgage,  was  acting  as  attorney  for  the  maker). 

Oklahoma:  Barker  v.  Wiseman,  (Okl.),  151  P.  1047  (every 
presumption  against  a  lawyer  to  whom  was  deeded  land 
by  a  poor  ignorant  freedman  who  had  consulted  him  con- 
cerning a  forged  deed  to  the  land). 

Texas:  Laybourne  v.  Bray  &  Shifflett,  (Tex.  Civ.  App.), 
190  S.  W.  1159  (where  a  new  contract  for  increased  com- 
pensation was  entered  into  after  the  employment  of  the 
attorney,  it  was  presumptively  without  consideration  and 
void,  and  the  burden  rested  on  the  attorney  to  show  that 
the  contract  was  fairly  made,  was  reasonable,  and  that 
no  advantage  was  taken  by  reason  of  the  confidential  rela- 
tion existing  between  the  parties,  and  that  his  client  en- 
tered into  it  with  full  knowledge  of  the  facts). 

Washington:  Hetrick  v.  Smith,  67  Wash.  664,  122  P.  363 
(stock  transferred  to  attorney  as  security  for  his  indorse- 
ment of  a  note  and  compensation  for  his  services;  attor- 
ney has  the  burden  of  showing  that  his  dealings  with  the 
stock  were  characterized  by  the  utmost  integrity). 


PRESUMPTIONS  AND  ESTOPPELS  721 

CHAPTER  XIV. 

ON  PRESUMPTIONS  AND  ESTOPPELS. 

Article  98. 
presumption  of  legitimacy. 

The  fact  that  any  person  was  born  during  the 
continuance  of  a  valid  marriage  between  his 
mother  and  any  man,  or  within  such  a  time  after 
the  dissolution  thereof  and  before  the  celebration 
of  another  valid  marriage,  that  his  mother's  hus- 
band could  have  been  his  father  is  conclusive 
proof  that  he  is  the  legitimate  child  of  his  moth- 
er's husband,  unless  it  can  be  shown 

either  that  his  mother  and  her  husband  had  no 
access  to  each  other  at  any  time  when  he  could 
have  been  begotten,  regard  being  had  both  to 
the  date  of  the  birth  and  to  the  physical  condi- 
tion (a)  of  the  husband, 

or  that  the  circumstances  of  their  access  (if 
any)  were  such  as  to  render  it  highly  improbable 
that  sexual  intercourse  took  place  between  them 
when  it  occurred. 

Neither  the  mother  nor  the  husband  is  a  com- 
petent witness  as  to  the  fact  of  their  having  or 
not  having  had  sexual  intercourse  with  each 
other,  nor  are  any  declarations  by  them  upon 
that  subject  deemed  to  be  relevant  facts  when  the 
legitimacy  of  the  woman's  child  is  in  question, 


(a)    [This,  doubtless,  is  intended  to  refer  to  the  impotency 
of  the  husband.     Hargrave  v.  Hargrave,  9  Beav.  552.] 


722  PRESUMPTIONS  AND  ESTOPPELS 

whether  the  mother  or  her  husband  can  be  called 
as  a  witness  or  not,  provided  that  in  applications 
for  affiliation  orders  when  proof  has  been  given 
of  the  non-access  of  the  husband  at  any  time  when 
his  wife's  child  could  have  been  begotten,  the  wife 
may  give  evidence  as  to  the  person  by  whom  it 
was  begotten,   (b) 

PRESUMPTION   OF   LEGITIMACY. 

A  child  born  in  wedlock  is  presumed  to  be  legitimate. 
—Mills'  Estate,  In  re,  137  Cal.  298,  70  P.  91;  Bethany 
Hospital  Co.  v.  Hale,  64  Kan.  367,  67  P.  848;  Grates  v. 
Garcia,  20  N.  M.  158,  148  P.  493;  Foote  v.  State,  (Tex.  Cr. 
R.),  144  S.  W.  275;  McAllen  v.  Alonzo,  46  Tex.  Civ.  App. 
449,  102  S.  W.  475. 

California.  A  child  born  in  lawful  wedlock  is  presumed 
to  be  the  child  of  the  husband,  although  the  wife  was  preg- 
nant at  the  time  of  her  marriage,  but  this  presumption 
may  be  rebutted.  In  cases  of  ante-nuptial  conceptions 
slighter  proof  is  required  to  repel  the  presumption  of 
legitimacy. — Baker  v.  Baker,  13  Cal.  87. 

The  provisions  of  the  Code,  (§  1962,  sub.  div.  5),  re- 
specting the  presumption  of  legitimacy,  presupposes  a 
marriage,  and  if  there  is,  in  legal  contemplation,  a  mar- 
riage, the  presumption  of  legitimacy  of  the  issue  follows. 

(b)  R.  v.  Luffe,  8  Ea.  207:  Cope  v.  Cope,  1  Mo.  &  Ro.  272- 
274;  Legge  v.  Edmonds,  25  L.  J.  Eq.  125,  see  p.  135;  R.  v. 
Mansfield,  1  Q.  B.  444;  Morris  v.  Davies,  3  C.  &  P.  215;  [4 
Wigmore  Ev„  §  2527;  Phillips  v.  Allen,  2  Allen  (Mass.),  453. 
The  testimony  of  the  mother  in  bastardy  cases  is  variously 
regulated  in  the  different  states.  Land  Co.  v.  Bonner,  75 
111.  315;  Stoke  v.  Worthingham,  23  Minn.  528;  but  see  Herr- 
ing v.  Goodson,  43  Miss.  392.]  I  am  not  aware  of  any  decision 
as  to  the  paternity  of  a  child  born  say  six  months  after  the 
death  of  one  husband,  and  three  months  after  the  mother's 
marriage  to  another.  Amongst  common  soldiers  in  India 
such  a  question  might  easily  arise.  The  rule  in  European 
regiments  is  that  a  widow  not  remarried  within  the  year  (it 
used  to  be  six  months)  must  leave  the  regiment:  the  result 
was  and  is  that  widowhoods  ars  usually  very  short. 


PRESUMPTIONS   AND   ESTOPPELS  723 

(Code,  §  193.)  Which  presumption  can  only  be  disputed 
by  the  husband  or  wife  or  their  descendants.  (Code,  § 
195.)— Campbell's  Estate,  In  re,  12  Cal.  App.  707,  108  P. 
669. 

New  Mexico.  The  presumption  of  law  being  that  a  child 
born  in  lawful  wedlock  is  legitimate,  the  mother  of 
such  a  child  is  not  a  competent  witness  to  prove  that  such 
child  was  not  begotten  by  the  man  who  became  her  hus- 
band before  its  birth.— Grates  v.  Garcia,  20  N.  M.  158,  148 
P.  493. 

Oklahoma.  The  presumption  is  in  favor  of  legitimacy. 
Direct  evidence  of  marriage  of  the  parents  is  not  neces- 
sary, and  after  a  long  lapse  of  time,  the  parties  being  dead, 
the  legitimacy  of  a  child  shown  to  have  been  born  of  a 
certain  man  and  woman  is  presumed,  although  there  is 
no  evidence  of  their  marriage. — Locust  v.  Carruthers,  23 
Okl.  373,  100  P.  520. 

Rebuttal    of    Presumption. 

Arkansas.  The  presumption  that  a  child  born  in  lawful 
wedlock  is  legitimate  may  be  rebutted  by  clear  and  sat- 
isfactory evidence.— Kennedy  v.  State,  117  Ark.  113,  173 
S.    W.    842. 

Oklahoma.  For  the  purpose  of  rebutting  the  presumption 
of  legitimacy,  it  is  permissible  to  prove  any  fact  or  state 
of  circumstances  which  render  it  impossible  that  the  hus- 
band could  have  been  the  father  of  the  child.  But  the 
presumption  of  legitimacy  is  so  strong  that  the  evidence 
to  overcome  it  must  be  distinct,  strong,  satisfactory  and 
conclusive.— Bell  v.  Territory,   8  Okl.  75,  56  P.  853. 

Oregon.  All  presumptions  are  in  favor  of  the  legitimacy 
of  a  child  born  in  lawful  wedlock,  and  where  this  pre- 
sumption hinges  upon  the  legality  of  the  marriage,  it  has 
been  held  in  support  of  the  presumption  that  where  there 
is  enough  to  create  a  foundation  for  the  presumption  of 
marriage,  it  can  be  repelled  only  by  the  most  cogent  and 
satisfactory  evidence. — Magginson  v.  Magginson,  21  Or. 
387,  28  P.  388. 


724  PRESUMPTIONS  AND  ESTOPPELS 

TESTIMONY   AS   TO    LEGITIMACY. 

Arkansas.  A  wife  may  testify  to  any  fact  tending  to  prove 
the  illegitimacy  of  the  child,  except  the  single  fact  of  non- 
access  of  her  husband. — Kennedy  v.  State,  117  Ark.  113, 
173  S.  W.  842;  Liles  v.  State,  117  Ark.  408,  174  S.  W.  1196. 
California.  The  presumption  arises  although  the  wife  was 
pregnant  at  the  time  of  the  marriage,  but  slighter  proof 
will  repel  it.  In  an  action  by  the  husband  for  a  divorce, 
the  confession  of  the  wife  that  a  stranger  was  the  father 
of  her  child,  conceived  before  marriage,  was  held  admis- 
sible.—Baker  v.  Baker,  13  Cal.  87. 

The  declarations  of  a  deceased  father  are  admissible  to 
prove  the  legitimacy  or  illegitimacy  of  his  children.— 
Pearson  v.  Pearson,  46  Cal.  609;  Heaton's  Estate,  In  re, 
135  Cal.  385,  67  P.  321. 

Neither  spouse  can  testify  that  while  living  together  they 
did  not  have  sexual  intercourse. — Mills'  Estate,  In  re,  137 
Cal.  298,  70  P.  91. 

Nonaccess  by  the  husband  being  clearly  shown,  or  at 
least  to  a  reasonable  certainty,  the  wife  may  testify  as  to 
the  paternity  of  children  born  to  her  thereafter. — Girds' 
Estate,  In  re,  157  Cal.  534,  108  P.  499. 
Kansas.  The  presumption  of  legitimacy  can  only  be  over- 
come by  the  clearest  and  most  conclusive  evidence  of  non- 
access  of  the  husband,  and  cannot  be  overthrown  by  the 
assertions  of  a  putative  father  that  the  child  was  begot- 
ten by  him. — Bethany  Hospital  Co.  v.  Hale,  64  Kan.  367, 
67  P.  848. 

Oklahoma.  Neither  the  husband  nor  wife  will  be  allowed 
to  give  evidence  tending  to  bastardize  the  offspring  of  the 
wife  born  during  wedlock. — Bell  v.  Territory,  8  Okl.  75, 
56  P.  853. 

Oregon.  The  declarations  or  acts  of  the  putative  mother 
are  competent  evidence  of  illegitimacy. — State  v.  McDon- 
ald, 55  Or.  419,  104  P.  967. 

Texas.  Neither  the  husband  or  wife  can  testify  to  any 
fact  which  would  render  a  child  born  in  lawful  wedlock  a 
bastard.— Simon  v.  State,  31  Tex.  Cr.  R.  186,  20  S.  W.  399; 
Meyer  v.  State,  (Tex.  Cr.  R.),  41  S.  W.  632. 


PRESUMPTIONS  AND  ESTOPPELS  725 

At  common  law  a  married  woman  could  not  testify  to 
intercourse  with  another,  or  nonaccess  of  her  husband  on 
the  question  of  bastardy  or  illegitimacy  of  her  child. 
Neither  spouse  can  testify  as  to  nonaccess,  but  others  may 
testify  as  to  the  husband's  impotency,  or  absence  for  such 
and  at  such  time  as  would  render  it  impossible  that  he 
could  be  the  father. — Foote  v.  State,  (Tex.  Cr.  R.),  144 
S.  W.  275;  McAllen  v.  Alonzo,  46  Tex.  Civ.  App.  449,  102 
S.  W.  475. 

Article  99. 
presumption  of  death  from  seven  years'  absence. 

A  person  shown  not  to  have  been  heard  of  for 
seven  years  by  those  (if  any)  who  if  he  had  been 
alive  would  naturally  have  heard  of  him,  is  pre- 
sumed to  be  dead,  unless  the  circumstances  of  the 
case  are  such  as  to  account  for  his  not  being 
heard  of  without  assuming  his  death;  but  there 
is  no  presumption  as  to  the  time  when  he  died, 
and  the  burden  of  proving  his  death  at  any  par- 
ticular time  is  upon  the  person  who  asserts  it.  (a) 

There  is  no  presumption  as  to  the  age  at  which 
a  person  died  who  is  shown  to  have  been  alive  at 
a  given  time,  or  as  to  the  order  in  which  two  or 
more  persons  died  who  are  shown  to  have  died 
in  the  same  accident,  shipwreck,  or  battle,  (b) 

(a)  McMahon  v.  McElroy,  5  Ir.  Rep.  Eq.  1;  Hopewell  v. 
De  Pinna,  2  Camp.  113;  Nepean  v.  Doe,  2  S.  L.  C.  562,  681; 
Nepean  v.  Knight,  2  M.  &  W.  894,  912;  R.  v.  Lumley,  L.  R. 
1  C.  C.  R.  196;  and  see  the  caution  of  Lord  Denman  in  R.  v. 
Harborne,  2  A.  &  E.  544.  All  the  cases  are  collected  and 
considered  In  re  Phene's  Trust,  L.  R.  5  Ch.  App.  139;  [4  Wig- 
more  Ev.,  §  2531].  The  doctrine  is  also  much  discussed  in 
Prudential  Assurance  Company  v.  Edmonds,  L.  R.  .  2  App. 
Cas.  487.  The  principle  is  stated  to  the  same  effect  as  in 
the  text  In  lie  Corbishley'a  Trusts,  L.  R.  14  Ch.  Div.  846. 

(b)  Wing  v.  Angrave,  8  H.  L.  C.  183,  198;  and  see  authori- 
ties In  last  note;   [4  Wigmore  Ev.,  §  2532], 


726  PRESUMPTIONS  AND  ESTOPPELS 

PRESUMPTION  OF  DEATH  FROM  ABSENCE. 
Arkansas.  Under  the  statute  (Kirby's  Digest,  §  5178), 
death  will  be  presumed  after  the  lapse  of  five  years. — 
Goset  v.  Goset,  112  Ark.  47,  164  S.  W.  759. 
Kansas.  At  the  close  of  a  continuous  absence  of  seven 
years,  during  which  time  nothing  is  heard  of  the  absent 
person,  death  will  be  presumed,  but  taking  into  consider- 
ation the  circumstances,  the  jury  may  sometimes  infer 
death  before  the  expiration  of  the  full  seven  years. — Ryan 
v.  Tudor,  31  Kan.  366,  2  P.  797. 

Unexplained  absence  for  more  than  seven  years  is  not 
conclusive  evidence  of  death,  but  simply  raises  a  presump- 
tion, and  before  it  obtains  there  must  be  a  lack  of  infor- 
mation concerning  the  absentee  on  the  part  of  those  likely 
to  hear  from  him  after  diligent  inquiry  extended  to  all 
places  where  information  is  likely  to  be  obtained. — Mod- 
ern Woodmen  v.  Gerdom,  72  Kan.  391,  82  P.  1100;  Id.,  77 
Kan.  401,  94  P.  788;  Renard  v.  Bennett,  76  Kan.  848,  93 
P.  261;   Thompson  v.  Millikin,  93  Kan.  72,  143  P.  430. 

In  order  that  the  presumption  that  a  person  once  shown 
to  have  been  alive,  continues  to  live  the  ordinary  length 
of  time,  may  be  overcome  by  the  presumption  of  death 
arising  from  seven  years'  unexplained  absence,  there  must 
be  a  lack  of  information  concerning  the  absentee  after 
diligent  inquiry  which  should  extend  to  all  those  places 
where  information  is  likely  to  be  obtained,  and  to  all 
those  persons  who,  in  the  ordinary  course  of  events,  would 
be  likely  to  receive  tidings  if  the  party  were  alive. — Mod- 
ern Woodmen  v.  Gerdom,  72  Kan.  391,  82  P.  1100;  Id.,  77 
Kan.  401,  94  P.  788;  Renard  v.  Bennett,  76  Kan.  848,  93 
P.  261. 

Death  may  be  inferred  within  seven  years  where  it  ap- 
pears that  when  last  heard  from  the  party  was  in  contact 
with  some  specific  peril  likely  to  produce  death,  or  that 
he  disappeared  under  circumstances  inconsistent  with  a 
continuation  of  life. — Caldwell  v.  Modern  Woodmen,  89 
Kan.  11,  130  P.  642. 

Unexplained  absence  for  more  than  seven  years  is  not 
conclusive  evidence  of  death,  but  simply  raises  a  presump- 
tion  of   death   subject   to   rebuttal   and   before   it   obtains 


PRESUMPTIONS  AND  ESTOPPELS  727 

there  must  be  a  lack  of  information  concerning  the  ab- 
sentee on  the  part  of  those  likely  to  hear  from  him  after 
diligent  inquiry  extended  to  all  places  where  information 
is  likely  to  be  obtained. — Thompson  v.  Millikin.  93  Kan. 
72,  143  P.  430. 

Nebraska.  The  presumption  of  life  with  respect  to  a  per- 
son of  whom  no  account  be  given  ends  at  the  expiration  of 
seven  years  from  the  time  he  was  last  known  to  be  living. 
— Holdredge  v.  Livingston.  79  Neb.  238,  112  N.  W.  341; 
Rosenerans  v.  Modern  Woodmen,  97  Neb.  568,  150  X  \Y. 
630;    Mitchell  v.  Kaufman,  95  Neb.   108.   145  N.  W.  247. 

The  established  presumption  of  fact  from  the  disappear- 
ance of  an  individual  under  ordinary  circumstances,  from 
whom  his  relatives  and  acquaintances  have  never  after- 
wards heard,  is  that  he  continues  to  live  for  seven  years 
after  his  disappearance,  such  presumption  is  not  conclu- 
sive and  taking  all  the  circumstances  into  consideration 
death  may  sometimes  be  inferred  to  have  occurred  at  an 
earlier  date.— Cox  v.  Ellsworth.  18  Neb.  664,  26  N.  W.  460; 
Coe  v.  Knights  &  L.  of  Security,  96  Neb.  130,  147  X.  \Y. 
112. 

North  Dakota.  To  raise  the  presumption  of  death  under 
the  statute,  (§  7302,  R.  C.  1905),  it  must  be  shown  that  the 
absentee  has  been  unheard  of  for  the  full  period  of  seven 
years,  but  where  it  appears  that  a  man  left  his  former 
home  place  and  located  elsewhere  with  the  intent  to  de- 
sert his  family,  the  presumption  is  overcome,  and  to  create 
a  new  presumption  of  death,  it  must  be  shown  that  he 
has  disappeared  from  his  new  and  last  home. — Wright  v. 
Jones.  23  X.  D.  191.  135  N.  W.  1120. 

Oklahoma.  It  is  a  rule  of  common  law  that  a  person 
shown  not  to  be  heard  of  for  seven  years  by  those,  if  any. 
who,  if  he  had  been  living,  would  naturally  have  heard  of 
him,  is  presumed  to  be  dead,  unless  the  circumstances  of 
the  case  are  such  as  to  account  for  his  not  being  heard  of. 
without  assuming  his  death.  Ordinarily  to  fix  the  pre- 
sumption of  death  there  must  he  proof  of  inquiry,  ex- 
hausting all  competent  resource  of  information  made  of 
the  persons  and  at  the  places  where  news  of  him,  if  living, 
would  most  probably   he  had.     A  distinction  in  the  appli- 


728  PRESUMPTIONS  AND  ESTOPPELS 

cation  of  the  rule  should  be  made  between  those  of  tender 
years  and  adults,  and  it  has  been  held  that  the  presump- 
tion does  not  arise  where  it  is  improbable  there  would  have 
been  any  communication  with  home. — Modern  Woodmen 
v.  Ghromley,  41  Okl.  532,  139  P.  306. 

Oregon.  Ordinarily  a  person  who  has  been  absent  for 
seven  years  without  having  been  heard  from  is  presumed 
to  be  dead. — Murray  v.  Murray,  6  Or.  17. 
South  Dakota.  The  statute  as  to  presumption  of  death, 
(Comp.  Laws,  §  5312),  applies  only  where  the  person  him- 
self withdraws  from  home  and  remains  beyond  the  reach 
of  reasonable  inquiry  for  seven  years. — Burnett  v.  Cos- 
tello,  15  S.  D.  89,  87  N.  W.  575. 

Texas.  The  common  law  rule  as  to  the  presumption  of 
de«th  from  seven  years'  absence  has,  to  some  extent,  been 
changed  by  statute.  But  mere  failure  of  strangers  to  hear 
from  or  of  one,  or  the  fact  that  his  present  whereabouts 
may  not  be  known  to  one  of  his  acquaintances  in  a  place 
of  his  former  residence,  who  is  not  shown  to  have  made 
any  inquiry  about  him,  does  not  establish  the  fact  of  ab- 
sence for  seven  years  successively  as  required  by  the 
statute. — State  v.  Teulon,  41  Tex.  249;  Gorham  v.  Sette- 
gast,    (Tex.  Civ.  App.),  98  S.  W.  665. 

The  presumption  of  death  after  seven  years'  absence 
without  tidings  arises  when  the  party  whose  death  is  in 
question  has  been  absent  from  his  last  known  place  of 
residence  or  domicile,  without  any  knowledge  or  informa- 
tion being  heard  of  him  by  his  friends  and  relations,  or 
among  those  who  were  acquainted  with  him,  or  who  for 
some  reason  it  should  be  supposed  would  have  heard  from 
or  about  him,  if  living.  This  common  law  rule  has,  to 
some  extent,  been  changed  by  statute.  Under  the  statute, 
mere  failure  of  strangers  to  hear  from  or  of  one,  or  the 
fact  that  his  present  whereabouts  may  not  be  known  to 
one  of  his  acquaintances  in  a  place  of  his  former  residence, 
who  is  not  shown  to  have  made  any  inquiry  about  him, 
does  not  establish  the  fact  of  absence  for  seven  years  suc- 
cessively as  required  by  the  statute. — State  v.  Teulon,  41 
Tex.  249. 


PRESUMPTIONS  AND  ESTOPPELS  729 

A  presumption  of  death  is  raised  by  the  absence  of  a 
person  from  his  domicile  when  unheard  of  for  seven  years. 
Absence,  in  this  connection,  means  that  a  person  is  not 
at  the  place  of  his  domicile,  and  that  his  actual  residence 
is  unknown.  But  removal  alone  is  not  sufficient,  and  it 
must  further  appear  that  he  has  disappeared  from  his 
domicile  and  from  the  knowledge  of  those  with  whom  he 
would  naturally  communicate.  That  his  whereabouts  have 
been  unknown  for  seven  years  or  upward,  is  necessary  to 
raise  the  presumption.  But  when  he  has  removed  his  dom- 
icile to  another  place,  wen  known,  this  is  a  change  of 
residence,  and  absence  from  the  last  domicile  is  that  upon 
which  the  presumption  must  be  built. — Gorham  v.  Sette- 
gast,   (Tex.  Civ.  App.),  98  S.  W.  665. 

Under  the  statute  (Art.  5707,  R.  S.  1911),  mere  proof 
of  absence  of  one  from  his  home  for  seven  successive 
years  raises  a  presumption  of  death,  without  proof  that 
the  absent  one  had  not  been  heard  from  by  his  relatives 
or  friends,  which  can  be  destroyed  by  proof  of  the  exis- 
tence of  the  absent  one  within  that  time. — Woodmen  of 
the  World  v.  Ruedrich,   (Tex.  Civ.  App.),  158  S.  W.  170. 

The  absence  of  a  person  for  seven  years,  without  being 
heard  of,  authorizes  the  presumption  that  he  is  dead. — 
State  v.  Teulon,  41  Tex.  249;  Primm  v.  Stewart,  7  Tex. 
178;  Wells  v.  Margraves,  (Tex.  Civ.  App.),  164  S.  W.  881. 

Time  of  Death. 

Colorado.  The  presumption  of  death  arising  from  absence 
raises  no  presumption  of  the  time  of  death. — New  York 
Life  Ins.  Co.  v.  Hoick.  59  Colo.  416,  151  P.  916. 

Kansas.  There  is  no  presumption  as  to  the  time  of  death. 
— Caldwell  v.  Modern  Woodmen.  89  Kan.  11,  130  P.  642. 

Washington.  The  presumption  of  death  attaches  when  a 
party  has  been  absent  for  seven  years  without  tidings  of 
his  existence,  but  the  time  of  death  is  a  question  of  fact 
after  taking  into  consideration  all  of  the  circumstances. 
—Butler  v.  Supreme  Court  I.  O.  F.,  53  Wash.  118.  101  P. 
481. 


730  PRESUMPTIONS  AND  ESTOPPELS 

ADMINISTRATION    ON    ESTATE    OF    LIVING    PERSON. 

California.  After  administration  had  been  granted  upon 
the  estate  of  a  supposed  deceased  person,  and  the  admin- 
istration closed,  and  the  administrator  discharged,  the  sup- 
posed decedent  appeared  in  person  and  filed  his  petition 
to  vacate  and  annul  the  proceedings;  and  an  order  was 
made  granting  the  motion.  Held,  there  is  no  doubt  of 
the  correctness  of  the  court's  action.  Administration  upon 
the  estate  of  a  living  person  is  totally  void. — Stevenson  v. 
Superior  Court,  62  Cal.  60. 

Washington.  After  an  unexplained  absence  for  seven 
years  a  party  cannot  maintain  ejectment  against  a  bona 
fide  purchaser  of  his  property  at  a  sale  thereof  made  by 
the  administrator  of  his  estate. — Scott  v.  McNeal,  5  Wash. 
309,  31  P.  873;   reversed,.  154  U.  S.  34,  14  Supt.  Ct.  1108. 

PRESUMPTION  AS  TO  SURVIVORSHIP. 

California.  The  statute  of  presumptions  relating  to  sur- 
vivorship where  two  persons  perish  in  the  same  calamity, 
only  applies  where  the  relative  times  of  the  death  of  the 
persons  cannot  be  shown  by  direct  or  circumstantial  evi- 
dence or  both. — In  re  Louck's  Estate,  160  Cal.  551,  117  P. 
673;  Grand  Lodge  A.  O.  U.  W.  v.  Miller,  8  Cal.  App.  25, 
96  P.  22. 

Colorado.  Where  the  husband  and  wife  are  killed  in  the 
same  accident,  and  there  is  no  proof  on  the  subject,  the 
legal  presumption  is  that  they  died  co-instantaneously. — 
Kansas 'Pacific  Ry.  Co.  v.  Miller,  2  Colo.  442. 

Kansas.  There  is  no  presumption  in  law  of  survivorship 
in  the  case  of  persons  who  perished  by  a  common  disaster. 
—Russell  v.  Hallett,  23  Kan.  276. 

Texas.  The  common  law  does  not  under  any  circum- 
stances, even  in  the  case  where  two  or  more  persons  per- 
ish by  the  same  calamity,  indulge  in  presumptions  of  sur- 
vivorship.—Cook  v.  Cassell,  81  Tex.  678,  17  S.  W.  385; 
Fitzgerald  v.  Ayres,  (Tex.  Civ.  App.).  179  S.  W.  289. 


PRESUMPTIONS  AND  ESTOPPELS  731 

Article  100. 
presumption  of  lost  grant,   (a) 

When  it  has  been  shown  that  any  person  has, 
for  a  long  period  of  time,  exercised  any  proprie- 
tary right  which  might  have  had  "a  lawful  origin 
by  grant  or  license  from  the  Crown  or  from  a 
private  person,  and  the  exercise  of  which  might 
and  naturally  would  have  been  prevented  by  the 
persons  interested  if  it  had  not  had  a  lawful  ori- 
gin, there  is  a  presumption  that  such  right  had  a 
lawful  origin  and  that  it  was  created  by  a  proper 
instrument  which  has  been  lost,  (b) 

Illustrations. 

(a)  The  question  is,  whether  B  is  entitled  to  recover  from 
A  the  possession  of  lands  which  A's  father  and  mother  suc- 
cessively occupied  from  1751  to  1792  or  1793,  and  which  B 
had  occupied  (without  title)  from  1793  to  1809.  The  lands 
formed    originally   an    encroachment    on    the    Forest    of    Dean. 

The  undisturbed  occupation  for  thirty-nine  years  raises 
a   presumption  of  a  grant  from  the  Crown   to  A's  father.1 

(b)  A  fishing  mill-dam  was  erected  more  than  110  years 
before  1861  in  the  River  Derwent,  in  Cumberland  (not  being 
navigable  at  thai  place),  and  was  used  for  more  than  sixty 
years  before  1861  in  the  manner  in  which  it  was  used  in 
1861.  This  raises  a  presumption,  that  all  the  upper  pro- 
prtetors  whose  rights  were  Injuriously  affected  by  the  dam, 
had   granted  a   right    to   erect    it.-' 

(c)  A  builds  a  windmill  near  L'.'s  land  in  1829,  and  enjoys 
a  free  current  of  air  to  it  over  B*s  land  as  of  right,  and 
without    interruption     till     I860.      This    enjoyment    raises    no 

(a)  The  subject  of  the  doctrine  of  lost  grants  is  much 
considered  in  Angus  v.  Dal  ton,  I.,  li.  3  Q.  B.  !>  si.  This 
case   is   now    (Feb.,    1881.)    before   the    Rouse  of    Lords. 

(b)  [4  Wigmore   Ev.,   8   2522.] 

KJoodtitle    v.    Baldwin,    li    Ba.    488.      The   presumption    was 
rebutted    in   this   case   by   an   express   provision   of   20   Ch.    II. 
avoiding  »f  the    Forest    of    Dean      See  also   Doe 

d     Devine    v.    Wilson,    in    Moo.    IV    ''.    502. 

onneld   v.    Lonsdale,   I..    Et.   5   C    P.   657. 


732  PRESUMPTIONS  AND  ESTOPPELS 

presumption  of  a  grant  by  B  of  a  right  to  such  a  current 
of  air,  as  it  would  not  be  natural  for  B  to  interrupt  it.8 

(d)  No  length  of  enjoyment  (by  means  of  a  deep  well)  of 
water,  percolating  through  underground  undefined  passages, 
raises  a  presumption  of  a  grant  from  the  owners  of  the 
ground  under  which  the  water  so  percolates  of  a  right  to  the 
water.4 

PRESUMPTION  OF  LOST  GRANT. 
Arkansas.  Where  parties  and  those  under  whom  they 
claim  have  been  in  the  open,  peaceable,  continuous,  and 
adverse  possession  of  the  land  in  controversy  for  many 
years,  cultivating  and  improving  the  same  and  paying 
taxes  thereon,  it  will  be  presumed  that  there  has  been  a 
proper  grant  of  the  lands.- — Carter  v.  Goodson,  114  Ark. 
62,  169  S.  W.  806;  Reed  v.  Money,  115  Ark.  1,  170  S.  W. 
478. 

California.  Where  a  purchaser  at  a  sheriff's  sale  had  been 
in  undisturbed  possession  of  the  land  for  several  years 
under  his  deed,  it  was  held  that  slight  proof  that  an  exe- 
cution issued  on  the  judgment  under  which  the  sale  was 
made  would  suffice. — Russell  v.  Harris,  38  Cal.  426. 

Long  continued  and  undisturbed  possession  of  lands  by 
a  party,  and  those  under  whom  he  claims,  will  raise  a 
presumption  that  the  holding  had  been  under  a  convey- 
ance.— Bryan  v.  Tormey,  (Cal.),  21  P.  725. 

Where  it  appears  that  there  was  an  open,  visible,  con- 
tinuous and  unmolested  use  of  a  way  for  more  than  thirty 
years,  it  will  be  presumed  that  the  use  was  under  a  claim 
of  right.— Fleming  v.  Howard,  150  Cal.  28,  87  P.  908. 
Kansas.  Exclusive  possession  and  occupancy  for  ten 
years  under  a  claim  of  absolute  title,  is  sufficient  to  raise 
the  inference  of  a  title  in  fee  simple  in  the  occupant. — 
Missouri  River,  F.  S.  &  G.  R.  Co.  v.  Owen,  8  Kan.  409. 
Nebraska.  Long  continued  possession  of  lands,  coupled 
with  acts  of  ownership,  is  sufficient  to  raise  the  presump- 
tion of  a  grant  from  the  record  owner. — Flanagan  v. 
Mathieson,  70  Neb.  223,  97  N.  W.  287. 

3Webb  v.  Bird,  13  C.  B.  n.  s.  841. 

^Chasemore  v.  Richards,  7  H.  L.  C.  349;  [Roath  v.  Driscoll, 
20  Conn.  533;  Wheatley  v.   Baugh,  25  Pa.   St.  528.] 


PRESUMPTIONS  AND  ESTOPPELS  733 

Where  it  appears  that  a  way  has  been  used  continuously 
for  many  years  it  will  be  presumed  that  it  was  under  a 
claim  of  right.— Majerus  v.  Barton,  92  Neb.  685,  139  N.  W. 
208;   Moll  v.  Hagerbaumer,  98  Neb.  555,  153  N.  W.  560. 

Evidence  of  ten  years'  use  by  the  public  of  a  road 
through  cultivated  land  with  the  knowledge  and  acquies- 
cence of  the  owner,  raises  the  presumption  of  an  implied 
dedication  as  a  public  highway. — Rube  v.  Sullivan,  23  Neb. 
779,  37  N.  W.  666;  Kendall-Smith  Co.  v.  Lancaster  Co.,  84 
Neb.  654,  121  N.  W.  960. 

Texas.  Long  continued  use  and  possession  of  land  is 
alone  sufficient  upon  which  to  base  the  presumption  that 
a  deed  was,  in  fact,  at  some  time  executed  covering  the 
land.— Taylor  v.  Watkins,  26  Tex.  688. 

This  is  a  presumption  of  fact  and  not  of  law. — Herndon 
v.  Vick,  89  Tex.  469,  35  S.  W.  141;  Herndon  v.  Burnett,  21 
Tex.  Civ.  App.  25,  50  S.  W.  581;  Carlisle  v.  Gibbs,  44  Tex. 
Civ.  App.  189,  98  S.  W.  192;  Masterson  v.  Harrington,  (Tex. 
Civ.  App.),  145  S.  W.  626. 

Presumptions  arise  from  certain  circumstances  of  the 
existence  of  such  muniments  of  title  as  are  necessary  to 
give  lawful  origin  to  a  title  long  openly  asserted  on  one 
side,  with  acquiescence  in  such  claim  on  the  other. — Le 
Blanc  v.  Jackson,  (Tex.  Civ.  App.),  161  S.  W.  60. 
Utah.  Where  one  has  been  in  undisturbed  possession  of  a 
mining  claim  for  several  years  under  a  deed  alleged  to 
have  been  lost,  and  the  grantors  are  dead  or  cannot  be 
found,  he  will  not  be  required  to  furnish  a  high  degree  of 
proof  of  the  execution  and  delivery  of  the  deed  to  him  and 
of  its  loss.— Scott  v.  Crouch.  24  Utah  377.  67  P.  1068. 

Auticlk  101.* 
presumption  of  regularity  am)  ()1   deeds  to  ( 'omi'i.l  ik  title. 

When  any  judicial  or  official  act  is  shown  to 
have  been  done  in  a  manner  substantially  regu- 

•See  note  at  end  of  this  article,  and  Macdougall  v.  Pur- 
rier,  3  Bligh,  N.  C.  433.  R.  v.  Cresswell,  L.  R.  i  Q.  B.  D. 
(C.  C.  R.)  446,  is  a  recent  illustration  of  the  effect  of  this 
presumption. 


734  PRESUMPTIONS  AND  ESTOPPELS 

lar,  it  is  presumed  that  formal  requisites  for  its 
validity  were  complied  with. 

When  a  person  in  possession  of  any  property 
is  shown  to  be  entitled  to  the  beneficial  ownership 
thereof,  there  is  a  presumption  that  every  instru- 
ment has  been  executed  which  it  was  the  legal 
duty  of  his  trustees  to  execute  in  order  to  perfect 
his  title,  (a) 

PRESUMPTION    OF    REGULARITY. 

Where  a  person,  in  his  official  capacity,  has  done  or 
should  do  a  certain  thing,  it  will  be  presumed  that  the  act 
was  or  will  be  performed  in  a  regular  and  valid  manner: 
Arizona:  Chenoweth  v.  Budge,  16  Ariz.  422,  145  P.  406. 
Arkansas:  Belcher  v.  Harr,  94  Ark.  221,  126  S.  W.  714; 
Appling  v.  State,  95  Ark.  185,  128  S.  W.  866;  Crawford 
County  Bank  v.  Baker,  95  Ark.  438,  130  S.  W.  556. 
California:  Spaulding  v.  Howard,  121  Cal.  194,  53  P.  563; 
Powers  v.  Hitchcock,  129  Cal.  325,  61  P.  1076;  Rogers  v. 
De  Cambra,  132  Cal.  502,  60  P.  863. 

Colorado:  Smith  v.  Pipe,  3  Colo.  187;  Evans  v.  Young, 
10  Colo.  316,  15  P.  424;  Woods  v.  Sargent,  43  Colo.  268,  95 
P.  932. 

Idaho:     Meservey  v.  Gulliford,  14  Ida.  133,  93  P.  780;  Sims 
v.  Milwaukee  Land  Co.,  20  Ida.  513,  119  P.  37. 
Kansas:     Valley  Township  v.  King  Iron  B.  &  Mfg.  Co.,  4 
Kan.  App.  622,  45  P.  660;    Gibson  v.  Trisler,  73  Kan.  397, 
85  P.  413. 

Montana:  Gehlert  v.  Quinn,  35  Mont.  451,  90  P.  168;  State 
v.  District  Court,  40  Mont.  17,  104  P.  872. 

Nebraska:  Brunke  v.  Gruben,  84  Neb.  806,  122  N.  W.  37; 
McCoy  v.  City  of  Omaha,  88  Neb.  316,  129  N.  W.  429;  John- 
ston v.  Frank,  97  Neb.  190,  149  N.  W.  409. 


(a)    Doe  d.  Hammond  v.   Cooke,   6   Bing.   174,   179;   Briggs  v. 
Hervey,    130    Mass.    186. 


PRESUMPTIONS  AND  ESTOPPELS  735 

Nevada:     Knox  v.  Kearney,  37  Nev.  393,   142  P.  526. 
New  Mexico:  Eldodt  v.  Territory,  10  N.  M.  141,  61  P.  105; 
State  v.  Romero,  17  N.  M.  81,  124  P.  649. 
North   Dakota:     Pine  Tree  Lumber  Co.  v.  City  of  Fargo, 
12  N.  D.   360,  96  N.  W.   357;    Shane  v.   Peoples.   25   N.   D. 
188,   141  N.  W.   737. 

Oklahoma:  Watkins  v.  Havighorst,  13  Okl.  128.  74  P. 
318;  Christ  v.  Fent,  16  Okl.  375.  84  P.  1074;  Leedy  v. 
Brown,  27  Okl.  489,  113  P.  177. 

Oregon:  Stephenson  v.  Van  Blokland,  60  Or.  247,  118  P. 
1026;  Harris  v.  Harsch,  29  Or.  562,  46  P.  141;  McLeod  v. 
Lloyd,  43  Or.  260,  71  P.  795. 

South  Dakota:  Fullerton  Lumber  Co.  v.  Tinker,  22  S.  D. 
427,  118  N.  W.  700;  Spencer  v.  Lyman,  27  S.  D.  471,  131 
N.  W.  802;  Richelson  v.  Mariette,  34  S.  D.  573,  149  N.  W. 
553. 

Texas:  Finberg  v.  Gilbert,  104  Tex.  539,  141  S.  W.  82; 
Stolley  v.  Lilwall,  38  Tex.  Civ.  App.  48,  84  S.  W.  689;  Levy 
v.  Persons,  (Tex.  Civ.  App.),  145  S.  W.  286. 
Utah:  Rio  Grande  Western  Ry.  Co.  v.  Stringham,  38 
Utah  113,  110  P.  868;  Tooele  Building  Ass'n  v.  Tooele  High 
School  Dist.,  43  Utah  362,  134  P.  894;  Union  Savings  & 
Inv.  Co.  v.  District  Court,  44  Utah  397,  140  P.  221. 
Washington:  State  v.  Middle  Kittitas  Irr.  Dist.,  56  Wash. 
488,  106  P.  203;  State  v.  City  of  Spokane,  64  Wash.  388, 
116  P.  878. 

Wyoming:  State  v.  State  Board  of  Land  Com'rs,  7  Wyo. 
478,  53  P.  292;  Lethbridge  v.  Lauder,  13  Wyo.  9,  76  P. 
682;  Reynolds  v.  Morton,  22  Wyo.  174,  136  P.  795. 
Nebraska.  A  bond  filed  and  acted  upon  as  a  basis  for  pro- 
ceedings, will  be  presumed,  twenty  years  afterwards,  to 
have  been  approved,  though  no  record  of  the  approval  is 
shown.— Seng  v.  Payne,  87  Neb.  812,  128  N.  W.  626. 

PRESUMPTION    OF   OWNERSHIP    OR    TITLE. 
Arkansas.     Where  it  appears  that  a  person  and  his  prede- 
cessors in  title  have  long  been  in  undisturbed  possession  of 
lands,  it  will  be  presumed  that  the  patent  upon  which  his 
title  is  based  was  regularly  issued  to  the  proper  person. 


736  PRESUMPTIONS  AND  ESTOPPELS 

—Osceola  Land  Co.  v.  Chicago  Mill  &  L.  Co.,  84  Ark.  1, 
103  S.  W.  609;  Stricklin  v.  Moore,  98  Ark.  30,  135  S.  W. 
360. 

California.  Proof  of  actual  possession  of  land  will  raise 
a  presumption  of  ownership. — Morris  v.  Clarkin,  156  Cal. 
16,  103  P.  180;  Davis  v.  Crump,  162  Cal.  513,  123  P.  294. 
Kansas.  Actual  possession  of  real  estate  is  prima  facie 
evidence  of  title  to  same. — Gilmore  v.  Norton,  10  Kan.  491. 

Nevada.  Bare  possession  of  property  is  sufficient  to  indi- 
cate ownership. — Scorpion  S.  M.  Co.  v.  Marsano,  10  Nev. 
378. 

New  Mexico.  Possession  of  land  raises  a  presumption  of 
ownership.— Harrison  v.  Gallegos,  13  N.  M.  1,  79  P.  300. 

Continuous  possession  of  land  coupled  with  the  produc- 
tion of  an  ancient  record  of  a  purported  deed  thereto,  is 
sufficient  to  raise  a  presumption  of  the  execution  of  a 
deed  to  the  land.— Union  Land  &  G.  Co.  v.  Arce,  21  N.  M. 
115,   152   P.   1143. 

North  Dakota.  Possession  of  lands  furnishes  a  presump- 
tion of  title,  but  to  support  an  action  to  determine  ad- 
verse claims  it  must  have  continued  for  the  length  of  time 
required  by  the  statute  to  ripen  into  title  or  until  adverse 
claims  are  barred  by  the  statute  of  limitations. — Goss  v. 
Herman,  20  N.  D.  295,  127  N.  W.  78. 

Texas.  Where  a  deed  recites  that  the  grantor  is  one  of 
the  heirs  of  the  deceased  owner,  and  that  he  has  power 
from  the  other  heirs  to  convey  their  title,  after  a  lapse 
of  time,  coupled  with  acts  of  ownership  by  the  grantee 
and  the  non-assertion  of  any  opposing  claim,  competent 
power  in  such  grantor  from  the  other  heirs  may  be  pre- 
sumed.— Veramendi  v.  Hutchins,  48  Tex.  552;  Grant  v. 
Searcy,  (Tex.  Civ.  App.),  35  S.  W.  861;  Maxson  v.  Jennings, 
19  Tex.  Civ.  App.  700,  48  S.  W.  781. 

In  a  collateral  attack  upon  a  sale  of  lands  by  an  exe- 
cutor, it  will  be  presumed  that  the  order  of  sale  was 
properly  made. — Corley  v.  Goll,  8  Tex.  Civ.  App.  184,  27 
S.  W.  820;  Daimwood  v.  Driscoll,  (Tex.  Civ.  App.),  151 
S.  W.   621. 


PRESUMPTIONS  AND  ESTOPPELS  737 

PRESUMPTION  AS  TO  SUNDRY  MATTERS. 
Where  a  certain  state  of  facts  is  proved  to  have  existed, 
the  legal  presumption  is  that  the  same  state  of  things  con- 
tinues to  exist  until  such  presumption  is  rebutted  by 
proof  or  by  some  counter  presumption  arising  from  lapse 
of  time  or  some  other  circumstance: 

California:  Kidder  v.  Stevens,  60  Cal.  414  (ownership  of 
land;  presumed  to  continue  until  the  contrary  appears); 
People  v.  Francis,  38  Cal.  183  (insanity;  only  of  habitual 
insanity,  not  of  spasmodic  or  temporary  mania) ;  People 
v.  Lane,  101  Cal.  513,  36  P.  16  (presumption  of  continu- 
ance of  prior  insanity  up  to  time  of  homicide  dependent  on 
the  nature  of  the  disease);  People  v.  Schmitt,  106  Cal.  8, 
39  P.  204  (insanity;  continuance  presumed,  provided  it  ap- 
pears to  be  of  such  duration  and  character  as  to  indicate 
the  probability  of  its  continuance) ;  People  v.  Quong 
Sing,  20  Cal.  App.  26,  127  P.  1052  (the  maxim  that  a  thing 
once  proved  to  exist  continues  as  long  as  is  usual  with 
things  of  that  nature  does  not  work  back;  trespass  on 
land  not  presumed  to  exist  at  a  long  past  time). 
Kansas:  State  v.  Reddick,  7  Kan.  151  (unsoundness  of 
mind  presumed  to  continue  unless  rebutted);  Rodgers  v. 
Rodgers,  56  Kan.  483,  43  P.  779  (presumption  of  continu- 
ance of  insanity  arising  from  an  adjudication  thereof  may 
be  rebutted). 

Montana:  Murphy's  Estate,  In  re,  43  Mont.  353,  116  P. 
1004  (continuance  of  insanity  not  presumed  in  cases  of  oc- 
casional or  intermittent  insanity). 

Nevada:  Table  Mt.  Min.  Co.  v.  Waller's  Defeat  Min.  Co., 
4  Nev.  218,  97  Am.  Dec.  526  (judge's  interest  in  defendant's 
case  a  year  before). 

South  Dakota:  Davis  v.  Davis,  24  S.  D.  474,  124  N.  W. 
715   (presumption  of  continuance  of  insanity  rebuttable). 

Texas:  Ralls  v.  Parish,  (Tex.  Civ.  App.),  151  S.  W.  1089 
(not  presumed  that  houses  in  a  newly  built  portion  of  a 
town  were  in  the  same  situation  in  1910  as  in  1891). 

Washington:     Collins  v.  Denny  Clay  Co.,  41  Wash.  136,  82 
P    1012   (ownership  of  corporate  stock). 


738  PRESUMPTIONS  AND  ESTOPPELS 

Nevada.  A  debt  existing  after  failure  to  pay  at  the  right 
time  is  presumed  to  continue. — O'Neill  v.  New  York  Min- 
ing Co.,  3  Nev.  141. 

Oklahoma.  Where  an  act  is  done  which  can  be  done  le- 
gally only  after  the  performance  of  some  prior  act,  proof 
of  the  latter  carries  with  it  a  presumption  of  the  due  per- 
formance of  the  prior  act. — Cyr  v.  Walker,  29  Okl.  281,  116 
P.  931. 

NOTE    XXXVII. 
(To  Article  101.) 

The  first  part  of  this  article  is  meant  to  give  the  effect 
of  the  presumption,  omnia. esse  rite  acta;  1  Ph.  Ev.  480,  etc.; 
T.  E.  ss.  124,  etc.;  Best,  s.  353,  etc.  This,  like  all  presump- 
tions, is  a  very  vague  and  fluid  rule  at  best,  and  is  applied 
to    a   great   variety    of    different    subject-matters. 

Article  102.* 
estoppel  by  conduct. 

When  one  person  by  any  thing  which  he  does 
or  says,  or  abstains  from  doing  or  saying,  inten- 
tionally (a)  causes  or  permits  another  person  to 
believe  a  thing  to  be  true,  and  to  act  upon  such 
belief  otherwise  than  but  for  that  belief  he  would 
have  acted,  neither  the  person  first  mentioned  nor 
his  representative  in  interest  is  allowed,  in  any 
suit  or  proceeding  between  himself  and  such  per- 
son or  his  representative  in  interest,  to  deny  the 
truth  of  that  thing. 

When  any  person  under  a  legal  duty  to  any 
other  person  to  conduct  himself  with  reasonable 
caution  in  the  transaction  of  any  business  neg- 
lects that  duty,  and  when  the  person  to  whom  the 
duty  is  owing  alters  his  position  for  the  worse 

♦See  Note  at  end  of  Article  105. 


PRESUMPTIONS  AND  ESTOPPELS  739 

because  he  is  misled  as  to  the  conduct  of  the  neg- 
ligent person  by  a  fraud,  of  which  such  neglect 
is  in  the  natural  course  of  things  the  proximate 
cause,  the  negligent  person  is  not  permitted  to 
deny  that  he  acted  in  the  manner  in  which  the 
other  person  was  led  by  such  fraud  to  believe  him 
to  act. 


Illustrations. 

(a)  A,  the  owner  of  machinery  in  B's  possession,  which 
Is  taken  in  execution  by  C,  abstains  from  claiming  it  for 
some  months,  and  converses  with  C's  attorney  without  re- 
ferring to  his  claim,  and  by  these  means  impresses  C  with 
the  belief  that  the  machinery  is  B's.  C  sells  the  machinery. 
A   is  estopped  from  denying  that  it  is  B's.1 

(b)  A,  a  retiring  partner  of  B,  gives  no  notice  to  the  cus- 
tomers of  the  firm  that  he  is  no  longer  B's  partner.  In  an 
action  by  a  customer,  he  pannot  deny  that  he  is  B's  partner.1 

(c)  A  sues  B  for  a  wrongful  imprisonment.  The  impri- 
sonment was  wrongful,  if  B  had  a  certain  original  warrant; 
rightful,  if  he  had  only  a  copy.  B  had  in  fact  a  copy.  He 
led  A  to  believe  that  he  had  the  original,  though  not  with 
the  intention  that  A  should  act  otherwise  than  he  actually 
did;  nor  did  A  so  act.  B  may  show  that  he  had  only  a  copy 
and  not  the  original.* 

(d)  A  sells  eighty  quarters  of  barley  to  B,  but  does  not 
specifically  appropriate  to  B  any  quarters.  B  sells  sixty  of 
the  eighty  quarters  to  C.  C  informs  A,  who  assents  to  the 
transfer.  C  being  satisfied  with  this,  says  nothing  further 
to  B  as  to  delivery.  B  becomes  bankrupt.  A  cannot  in  an 
action  by  C  to  recover   the  barley,   deny   that  he  holds  for  C 

'Packard  v.  Scars,  6  A.  &  E.  469,  474;  [Stephens  v.  Baird, 
9  Cow.  (N.  Y.).  274;  Redd  v.  Muscogee  R.  R.  Co.,  48  Ga.  102; 
Horn  v.  Cole,  51  N.  H.  287.  Readman  v.  Conway,  126  Mass. 
374;  Jackson  v.  Allen.  120  Mass.  64;  Forsyth  v.  Day,  46 
Me.  176;  Kirk  v.  Hartman,  63  Pa.  St.  97;  Jewell  v.  Paper  Co., 
101  111.   57;   Best  Ev.  Am.  ed.   519  and  note.] 

2(Per  Parke,  B. )  Freeman  v.  Cooke,  2  Ex.  661.  [An  in- 
surance company  renews  a  policy,  with  full  knowledge  that 
certain  statements  in  the  application  are  untrue.  It  cannot 
set  up  the  untrue  statement  as  a  defense  in  a  suit  for  the 
loss.  Wetherell  v.  Mar.  Ins.  Co.,  49  Me.  200.  See  also  May 
on  Insurance,  §  502  et  seq.] 

•Howard   v.    Hudson,    2   E.    &   B.    1. 


740  PRESUMPTIONS  AND  ESTOPPELS 

on  the  ground  that,  for  want  of  specific  appropriation,  no 
property  passed   to   B.4 

(e)  A  signs  blank  cheques  and  gives  them  to  his  wife  to 
fill  up  as  she  wants  money.  A's  wife  fills  up  a  cheque  for 
£50  2s  so  carelessly  that  room  is  left  for  the  insertion  of 
figures  before  the  50  and  for  the  insertion  of  words  before 
the  "fifty."  She  then  gives  it  to  a  clerk  of  A's  to  get  it 
cashed.  He  writes  3  before  50,  and  "three  hundred  and" 
before  "fifty."  A's  banker  pays  the  cheque  so  altered  in 
good   faith.      A   cannot   recover   against   the   banker.5 

(f)  A  carelessly  leaves  his  door  unlocked,  whereby  his 
goods  are  stolen.  He  is  not  estopped  from  denying  the  title 
of  an   innocent   purchaser  from   the   thief.6 

ESTOPPEL  BY  CONDUCT. 

Ordinarily  the  doctrine  of  estoppel  is  not  available  unless 
injury  would  result  otherwise: 

Arizona:     Brutinel  v.  Nygren,  17  Ariz.  491,  154  P.  1042. 
Arkansas:     Frazer  v.  State  Bank,  101  Ark.  135,  141  S.  W. 
941;    Hoffman  v.  Rice-Stix  D.  G.  Co.,  Ill  Ark.  205,  163  S. 
W.  520. 

California:  National  Bank  of  California  v.  Miner,  167 
Cal.  532,  140  P.  27;  Mentry  v.  Broadway  B.  &  T.  Co.,  20 
Cal.  App.  388,  129  P.  470. 

Idaho:  Whitley  v.  Spokane  &  I.  Ry.  Co.,  23  Ida.  642,  132 
P.  121. 

Kansas:     Glover  v.    Berridge,    86    Kan.    611,    121    P.    1130; 
Simmons   v.    Shaft,    91   Kan.    553,    138   P.    614. 
Montana:     Brundy   v.   Canby,   50   Mont.   454,   148   P.   315; 
Yellowstone  County  v.  First  T.  &  S.  Bank,  46  Mont.  439, 
128   P.   596. 

Oklahoma:  Madill  State  Bank  v.  Weaver,  (Okl.),  154  P. 
478;   Williams  v.  Purcell,  45  Okl.  489,  145  P.  1151. 

'Knights  v.  Wiffen,  L.  R.  5  Q.  B.  660;  [McNeil  v.  Hill, 
Woolw.    C.    Ct.    96.] 

'Young  v.  Grote,  4  Bing.  253.  '  [See  numerous  cases  illus- 
trative of  this  point,   2  Greenl.  Ev.,   §   172,  and  notes.] 

«Per  Blackburn,  J.,  in  Swan  v.  N.  B.  Australasian  Co.,  2 
H.  &  C.  181;  [1  Greenl.  Ev.,  §§  24-27,  207].  See  Baxendale 
v.  Bennett,  3  Q.  B.  D.  525.  The  earlier  cases  on  the  subject 
are  much  discussed  in  Jorden  v.  Money,  5  H.  &  C.  209-216, 
234,  235. 


PRESUMPTIONS  AND  ESTOPPELS  741 

Texas:  West  v.  City  of  Houston,  (Tex.  Civ.  App.),  163 
S.  W.  679;  Texas  Cent.  Ry.  Co.  v.  McCall,  (Tex.  Civ.  App.), 
166  S.  W.  925. 

Washington:  Western  Lumber  &  P.  Co.  v.  Joslyn,  66 
Wash.  524,  120  P.  69;  Ford  v.  Aetna  Life  Ins.  Co.,  70 
Wash.  29,  126  P.  69. 

Arizona.  Where  a  party  possessing  the  power  of  eminent 
domain  enters  upon  the  property  of  another  and  expends 
labor  and  money,  and  the  latter  acquiesces  without  re- 
quiring payment  or  condemnation  proceedings,  he  will  be 
estopped  from  maintaining  trespass  or  ejectment,  and  re- 
stricted to  a  suit  for  damages. — Donohue  v.  El  Paso  & 
S.  W.  R.  Co..  11  Ariz.  293,  94  P.  1091. 

Where  one  is  sued  for  a  breach  of  contract  to  erect 
a  building  at  a  stipulated  price,  and  after  the  completion 
of  the  building  its  cost  exceeded  the  price  agreed  upon, 
he  cannot  urge  in  defense  that  the  contract  was  void 
for  lack  of  mutuality  and  consideration. — Wadin  v. 
Czuczka,  16  Ariz.  371,  146  P.  491. 

One  cannot  assert  a  right  based  upon  the  failure  of 
another  to  do  a  thing  which  would  have  been  done  but 
for  his  own  conduct. — Bennie  v.  Becker-Franz  Co.,  17  Ariz. 
198,  149  P.  749. 

Arkansas.  One  will  not  be  heard  to  deny  the  existence 
of  a  certain  state  of  facts  which  he.  either  in  express 
terms  or  by  conduct,  represented  as  existing,  and  which 
he  intended  to  be  acted  upon  by  another  in  a  certain  way, 
ami  which  was  acted  upon  in  good  faith  by  the  other,  to 
his  detriment. — Harriman  v.  Meyer,  45  Ark.  40;  Rogers 
v.  Galloway  Female  College,  64  Ark.  627,  44  S.  W.  454; 
Harrison  v.  Luce.  64  Ark.  583,  43  S.  W.  970. 

To  raise  an  estoppel  requires  intentional  deceit,  or  at 
least  that  gross  negligence  which  is  evidence  of  an  intent 
to  deceive,  and  as  it  bars  the  truth  to  the  contrary,  it 
must  be  strictly  proved  and  nothing  can  be  supplied  by 
intendment.— Arkansas  Nat.  Bank  v.  Boles.  97  Ark.  43, 
133  S.  W.   195. 

Where  the  beneficiary  of  a  trust  deed  represents  to  one 
contemplating  the  purchase  of  the  land  covered  by  it  that 


742  PRESUMPTIONS  AND  ESTOPPELS 

it  was  put  up  solely  as  collateral,  he  will  be  estopped  from 
asserting  to  the  contrary  after  the  purchase  is  consum- 
mated.—Winter  v.  Humble,  116  Ark.  588,  172  S.  W.  849. 

Where  the  grantee  in  a  deed  takes  the  acknowledgment 
of  the  wife  of  the  grantor  and  thereby  fails  to  acquire  title 
to  her  dower  rights,  he  will  be  estopped  from  asserting, 
as  against  the  heirs  of  the  grantor,  that  they  reimburse 
him  therefor.— Dawkins  v.  Petteys,  121  Ark.  498,  181  S. 
W.    901. 

California.  Decedent  executed  a  mortgage  securing  her 
note.  Afterwards  she,  together  with  her  husband  and  son, 
gave  other  notes  and  subsequently  conveyed  the  property 
to  the  son  who  executed  a  trust  deed  upon  the  property 
securing  all  the  notes.  After  her  death  the  property  was 
sold  under  that  trust  deed,  and  it  was  announced  at  the 
sale  that  the  title  would  be  free  of  all  incumbrances  and 
the  original  mortgage  released.  The  husband,  who  was 
also  her  executor,  attended  the  sale,  made  no  objection 
to  the  announcement  of  terms,  but  demanded,  in  his  in- 
dividual capacity,  that  the  proceeds  be  applied  first  to 
the  payment  of  the  later  notes  which  he  had  signed,  which 
was  done,  leaving  a  deficiency  on  the  original  note  of  de- 
cedent. It  was  held  that  the  husband,  as  executor,  was 
not  estopped  from  denying  that  the  deficiency  was  a 
charge  against  the  estate  of  decedent  on  the  ground  that 
the  proceeds  of  the  sale  were  not  first  applied  on  the 
payment  of  the  original  mortgage,  or  by  the  release  of 
that  mortgage. — Crisman  v.  Lanterman,  149  Cal.  647,  87 
P.  89. 

Where  one  relying  upon  the  promise  of  another  to  exe- 
cute a  contract  required  by  the  statute  of  frauds  to  be  in 
writing  has  altered  his  position  to  his  injury,  the  promisor 
will  not  be  allowed  to  plead  the  statute  in  defense. — Sey- 
mour v.  Oelrichs,  156  Cal.  782,  106  P.  88. 

A  party  may  not  avail  himself  of  his  own  deliberate 
omission,  or  even  his  unintentional  neglect,  to  advise  an- 
other of  a  fact  vital  to  the  legality  of  a  contract  which 
they  had  entered  into. — Godfrey  v.  Wisner,  169  Cal.  667, 
147  P.  952. 


PRESUMPTIONS  AND  ESTOPPELS  743 

One  is  estopped  by  his  silence  when  he  thus  leads  an- 
other to  believe  in  the  existence  of  a  state  of  facts  in  re- 
liance upon  which  the  other  acts  to  his  prejudice.  There 
must  be  something  wilful  or  culpable  in  the  silence  which 
allows  another  to  place  himself  in  an  unfavorable  posi- 
tion on  the  faith  or  understanding  of  a  fact  which  the 
person  remaining  silent  can  contradict.  But  where 
knowledge  of  the  matter  upon  which  the  party  is  silent 
is  equally  open  to  both  parties  there  can  be  no  estoppel 
raised  by  the  silence.— Eltinge  v.  Santos,  171  Cal.  278,  152 
P.  915. 

Colorado.  If  a  party  by  conduct  has  intimated  that  he 
consents  to  an  act  which  has  been  done,  or  will  offer  no 
opposition  to  it,  although  it  could  not  have  been  lawfully 
done  without  his  consent,  and  he  thereby  induces  others 
to  do  that  from  which  they  otherwise  might  have  ab- 
stained, he  cannot  question  the  legality  of  the  act  he  has 
so  sanctioned  to  the  prejudice  of  those  who  have  acted 
on  the  fair  inference  to  be  drawn  from  his  consent. — 
Divide  Canal  &  R.  Co.  v.  Tenney,  57  Colo.  14,  139  P.  1110. 

Where  a  son  and  his  wife  were  fully  informed,  urged  and 
acquiesced  in  the  making  of  an  agreement  between  the 
son's  mother  and  a  third  party,  whereby  the  latter  was 
to  care  for  the  mother  as  long  as  she  lived,  and  in  pay- 
ment therefor  the  mother  conveyed  to  such  third  party 
certain  property  belonging  to  the  mother,  the  son  and 
daughter-in-law,  after  the  mother's  death,  will  be  estopped 
from  setting  aside  the  conveyance  on  the  ground  of  men- 
tal incapacity  of  the  mother. — Green  v.  Hulse,  57  Colo.  238, 
142  P.  416. 

Parties  are  estopped  to  deny  the  realty  of  a  state  of 
things  which  they  have  made  to  appear  to  exist,  and  upon 
which  others  have  been  led  to  rely.  So  where  a  testator 
declared  in  his  will  that  a  person  was  his  adopted  son, 
his  executor  is  estopped  from  claiming  the  contrary. — 
Dawley  v.  Dawley's  Estate,  60  Colo.  73,  152  P.  1171. 
Idaho.  When  silence  is  so  suggestive  that,  coupled  with 
the  fact  of  knowledge  within  the  mind  of  him  who  in 
honesty  and  fair  dealing  ought  to  speak  out,  it  becomes 
a  fraud  on  the  part  of  him  who  should  speak,  then  it  is 


744  PRESUMPTIONS  AND  ESTOPPELS 

sufficient  to  estop. — Fraber  v.  Page  &  M.  Lumber  Co., 
20  Ida.  354,  118  P.  664. 

If  a  party  by  conduct  has  intimated  that  he  consents  to 
an  act  which  has  been  done,  or  will  offer  no  opposition  to 
it,  although  it  could  not  have  been  done  lawfully  without 
his  consent,  and  he  thereby  induces  others  to  do  that  from 
which  they  otherwise  might  have  abstained,  he  cannot 
question  the  legality  of  the  act  he  has  so  sanctioned  to 
the  prejudice  of  those  who  have  acted  on  the  fair  infer- 
ence to  be  drawn  from  his  conduct. — Exchange  State  Bank 
v.  Taber,   26  Ida.  ,723,  145  P.   1090. 

So,  where  a  wife,  owning  a  business,  allowed  her  hus- 
band to  hold  himself  out  as  the  owner,  she  will  be  estopped 
from  asserting  ownership  to  the  injury  of  those  who  gave 
the  husband  credit  because  of  his  apparent  ownership. 
—Boise  Butcher  Co.  v.  Anixdale,   26  Ida.   483,  144  P.  337. 

Where  an  agent  exceeds  his  authority  by  accepting  a 
note  instead  of  cash,  and  the  principal  ratifies  the  action, 
and  the  agent  endorses  the  note,  sells  the  same  and  the 
principal  has  the  benefit  of  the  proceeds,  and  agrees  to 
hold  the  agent  harmless  because  of  the  endorsement,  the 
principal  or  his  administrator  will  be  estopped  to  deny 
the  agent's  claim  for  reimbursement  originating  on  ac- 
count of  the  endorsement. — Blackwell  v.  Kercheval,  27 
Ida.  537,  149  P.  1060. 

Kansas.  Where  a  parent  asserts  in  his  pleading  and  evi- 
dence, the  right  of  his  minor  child  to  recover  for  personal 
injuries  in  an  action  brought  by  the  parent  as  next  friend, 
the  latter  will  be  estopped  from  recovering  in  his  own 
right,  damages  in  lieu  of  the  child's  earnings  and  for 
diminished  earning  capacity. — Abeles  v.  Bransfield,  19 
Kan.  16. 

One  who  by  falsely  representing  that  a  certain  state  of 
facts  exists,  has  mislead  another,  is  precluded  from  deny- 
ing the  truth  of  such  representations  where  such  denial 
would  result  in  loss  to  the  other  party  and  operate  as  a 
fraud  upon  him. — Cornell  University  v.  Parkinson,  59  Kan. 
365,  53  P.  158;  Westerman  v.  Corder,  86  Kan.  239,  119 
P.  868;    Freeman  v.  Peter,  97  Kan.  63,  154   P.  270. 


PRESUMPTIONS  AND  ESTOPPELS  745 

Whenever  a  person  with  notice  or  means  of  knowledge 
of  the  facts  and  of  his  rights,  remains  silent  for  a  long 
period  of  time  and  abstains  from  impeaching  a  proceeding 
divesting  him  of  the  right  to  obtain  title  to  land,  so  that 
another  is  induced  to  believe  the  proceeding  has  been  ac- 
quiesced in  as  valid,  and  acting  upon  such  belief,  is  in- 
duced to  purchase  the  property  and  expends  money  upon 
its  improvement,  the  proceeding  becomes  unimpeachable 
in  equity,  whatever  its  original  character  might  have  been. 
—Burgess  v.  Hixon,  75  Kan.  201,  88  P.  1076;  Trego  Land 
&  I.  Co.  v.  Reddig.  86  Kan.  689,  121  P.  912. 
Montana.  Where,  by  the  terms  of  a  deed  to  a  mining 
claim  any  after  acquired  interest  of  the  grantor  would 
inure  to  the  benefit  of  the  grantee,  and  the  grantee  aban- 
doned it  and  it  reverted  to  the  public  domain,  was  relo- 
cated by  a  third  party  and  thereafter  conveyed  by  him 
to  the  original  grantor,  all  parties  acting  in  good  faith, 
it  was  held,  that  the  original  grantor  was  not  estopped 
from  asserting  ownership  as  against  his  grantee  in  the 
first  mentioned  conveyance. — McDermott  Min.  Co.  v.  Mc- 
Dermott.   27   Mont.    143,   69   P.   715. 

Where  one  has.  by  his  acts  or  representations,  or  by 
his  silence  when  he  ought  to  speak  out.  intentionally  or 
through  culpable  negligence  induced  another  to  believe 
certain  facts  to  exist,  and  such  other  has  rightfully  acted 
on  this  belief  so  that  he  will  be  prejudiced  if  the  former  is 
permitted  to  deny  the  existence  of  such  facts,  the  former 
is  conclusively  estopped  to  interpose  a  denial  thereof. — 
Finlen  v.  Heinze,  32  Mont.  354.  80  P.  918;  Kennedy  v. 
Grand  Fraternity,  36  Mont.  325,  92  P.  971. 
Nebraska.  Two  defenses  irreconcilably  inconsistent  may 
not  be  enforced,  and  the  position  assumed  by  the  party 
prior  to  the  suit  relative  to  the  facts  and  circumstances 
involved  in  the  transaction  drawn  into  question  will  pre- 
vail.— Columbia  Nat.  Bank  v.  German  Nat.  Bank,  56  Neb. 
803,   77   N.   W.   346. 

Where  a  party  gives  a  reason  for  his  conduct  and  deci- 
sion touching  anything  in  controversy,  he  cannot,  after 
litigation  had  begun,  put  his  conduct  in  another  and  dif- 
ferent consideration. — Continental  Ins.  Co.  v.  Waugh.  60 
Neb.  348,  83  N.  W.  81. 


746  PRESUMPTIONS  AND  ESTOPPELS 

Where  real  estate  is  conveyed  by  deed  and  at  the  same 
time  property  located  thereon  capable  of  being  detached 
without  injury  to  the  land  is  conveyed  by  bill  of  sale,  the 
parties  will  be  estopped  from  claiming  that  the  person- 
alty passed  by  the  deed. — Bell  v.  Looker,  98  Neb.  327, 
152  N.  W.   551. 

Nevada.  Long  acquiescence  of  owners  of  land,  sleeping 
upon  their  rights  in  allowing  others  without  objection  to 
deal  with  the  land  and  exercise  the  rights  of  ownership, 
will  estop  them  from  asserting  their  title. — Quinn  v.  Small, 
38  Nev.  8,  143  P.  1053. 

New  Mexico.  Where  a  party  gives  a  reason  for  his  con- 
duct and  decision  touching  anything  in  a  controversy,  he 
cannot,  after  litigation  has  begun,  put  his  conduct  in  an- 
other and  different  consideration. — Irwin  v.  Woodmen  of 
the  World,  15  N.  M.  365,  110  P.  550. 

North  Dakota.  Where  a  deed,  placed  in  escrow  for  fu- 
ture delivery,  is  fraudulently  recorded  by  the  grantee, 
knowledge  of  which  comes  to  the  grantor  who  does  not 
dispute  the  grantee's  title  so  acquired  within  a  reason- 
able time,  the  grantor  will  be  estopped  from  asserting  title 
as  against  an  innocent  purchaser  relying  upon  the  gran- 
tee's record  title. — Johnson  v.  Erlandson,  14  N.  D.  518,  105 
N.   W.   722. 

Where  an  officer  of  a  corporation  without  authority  bor- 
rowed money  in  the  name  of  the  corporation,  pledged  its 
property  as  security,  and  the  money  was  received  and 
used  by  the  corporation  under  circumstances  which  did 
or  should  have  brought  notice  to  the  corporation,  it  was 
held  to  have  been  estopped  to  deny  the  authority  of  such 
officer.— First  Nat.  Bank  v.  State  Bank,  15  N.  D.  594,  109 
N.  W.   61. 

One  who  stands  silently  by  whilst  his  obligation  is  trans- 
ferred to  a  bona  fide  purchaser  without  giving  notice  of 
his  defense  or  set-off,  if  he  has  any,  is  estopped  from  set- 
ting up  such  defense  against  the  purchaser. — Vallancey 
v.  Hunt,  20  N.  D.  579,  129  N.  W.  455. 

Oklahoma.  If  one  maintains  silence  when  in  conscience 
he  ought  to  speak,  equity  will  debar  him  from  speaking 


PRESUMPTIONS  AND  ESTOPPELS  747 

when  in  conscience  he  ought  to  remain  silent.  So  where 
a  school  board  purchased  from  the  husband,  before  he 
had  made  final  proof,  a  part  of  the  land  entered  and  occu- 
pied as  a  homestead,  for  which  he  executed  a  quitclaim 
deed  in  which  his  wife  did  not  join,  and  the  property  was 
improved  and  the  possession  of  the  board  continued  for 
a  number  of  years  without  any  assertion  of  title  by  the 
husband  or  wife,  it  was  held  that  both  were  estopped  from 
recovering  the  land. — Brusha  v.  Board  of  Education,  41 
Okl.   595,   139   P.   298. 

Where  a  parent  asserts  in  his  pleading  and  evidence, 
the  right  of  his  minor  child  to  recover  for  personal  injuries 
in  an  action  brought  by  the  parent  as  next  friend,  the 
parent  will  be  estopped  from  recovering  in  his  own  right, 
damages  in  lieu  of  the  child's  earnings  and  for  diminished 
earning  capacity.— Revel  v.  Pruitt,  42  Okl.  696,  142  P.  1019. 

Where  an  applicant  for  insurance  makes  a  false  state- 
ment the  falsity  of  which  is  or  should  be  known  to  the 
insurer,  the  latter  will  be  charged  with  knowledge  thereof 
and  is  estopped  to  plead  misrepresentation  and  avoid  lia- 
bility on  a  policy  subsequently  issued  on  the  false  appli- 
cation.—Supreme  Tribe  v.   Owens,    (Okl.),  151  P.  198. 

Where  the  owner  gives  the  seller  express  power  to 
sell  the  property,  and  he  does  sell  it,  clothed  with  all 
the  indicia  of  ownership,  and  the  express  right  to  sell  it, 
the  owner  will  be  estopped  from  claiming  title. — A.  L. 
Jepson    Mfg.   Co.    v.    Shank,    (Okl.),    154   P.    516. 

Oregon.  A  party  cannot  recognize  another  as  his  agent 
and  ratify  unauthorized  acts  where  they  result  to  his 
advantage  and  disclaim  the  authority  when  they  result 
to  his  injury.— McLeod  v.  Despain,  49  Or.  536,  90  P.  492. 

A  person  may  be  estopped  by  his  conduct,  whether  or 
not  he  intended  that  others  should  act  upon  the  strength 
of  It,  it  it  induced  the  belief  that  his  intention  was  com- 
patible with  his  conduct.  So  where  the  owner  of  goods 
stands  by  and  voluntarily  allows  another  to  treat  them 
as  his  own.  whereby  a  third  person  is  induced  to  buy  them 
bona  tide,  such  owner  cannot  recover  the  property  from 
the  purchaser.     Ashley  v.  Pick,  53  Or.  410.  100  P.  1103. 


748  PRESUMPTIONS  AND   ESTOPPELS 

Where  one  testifies  that  he  considers  an  agent  his 
debtor,  he  will  be  estopped  from  attempting  to  enforce 
his  claim  against  the  principal. — Gardner  v.  Kinney,  60 
Or.  292,  117  P.  971. 

A  purchaser  of  land  who  has  the  same  deeded  to  an- 
other for  the  purpose  of  delaying  his  creditors  will  be  es- 
topped to  assert  his  title  as  against  a  mortgage  executed 
by  such  other  person,  where  the  mortgagee  relied  on  his 
representations  that  such  other  was  the  owner. — Bush  v. 
Roberts,  57  Or.  169,  110  P.  790. 

A  subsequent  oral  agreement  in  modification  of  a  writ- 
ten agreement  for  the  sale  of  lands  is  void;  but  an  ex- 
ception to  this  rule  arises  where  the  circumstances  are 
such  that  equity  will  not  permit  the  statute  of  frauds  to 
be  used  to  perpetrate  a  fraud;  as  where  there  was  an 
oral  extension  of  time  of  payment  acted  upon  by  the 
vendee,  the  vendor  will  be  estopped  to  assert  default  in 
payment  as  provided  in  the  written  agreement  and  then 
invoke  the  statute. — Kingsley  v.  Kressly,  60  Or.  167,  118 
P.  678. 

South  Dakota.  Where  a  mortgagor  did  not  attempt  to  set 
aside  voidable  foreclosure  proceedings,  but  surrendered 
possession  of  the  premises  to  the  purchaser  under  the 
decree,  and  otherwise  completely  estopped  himself  from 
asserting  the  invalidity  of  the  proceedings,  and  it  appears 
that  prior  to  the  decree  he  had  conveyed  the  premises  to 
another,  the  latter  will  also  be  estopped  from  asserting 
the  invalidity  of  the  foreclosure  proceedings. — Shelby  v. 
Bowden,  16   S.  D.   531,  94  N.  W.  416. 

One  who.  by  his  negligence  and  laches,  has  allowed  his 
grantee  in  a  deed  absolute,  with  an  oral  defeasance,  to 
treat  the  property  as  though  no  trust  existed,  will  be  es- 
trmped  to  assert  the  trust  to  the  injury  of  a  bona  fide  pur- 
c'->a^er  of  the  property  from  the  grantee  in  such  deed. — 
0.-«hv  v  Larson,  24  S.  D.  628,  124  N.  W.  856;  Grigsby 
v.  Verch,  34  S.  D.  39,  146  N.  W.  1075. 

"'^^  riecedent  purchased  property,  causing  the  deed 
to  be  taken  in  his  brother's  name,  and  until  his  death, 
whioh  occurred  over  ten  years  later,  was  in  possession 
and  controlled  the  land  in  subordination  to  the  brother's 


PRESUMPTIONS  AND  ESTOPPELS  749 

legal  title,  but  there  was  no  showing  that  decedent  had 
expended  money  for  or  made  improvements  on  the  land 
or  had  done  any  act  detrimental  to  the  legal  title,  and 
no  adverse  claim  appeared  until  the  land  was  awarded  to 
decedent's  widow  eight  years  after  his  death,  it  was  held 
that,  mere  silence  on  the  part  of  the  brother  did  not 
give  rise  to  an  estoppel  by  laches  as  against  him. — Wal- 
lace v.  Dunton,  30  S.  D.  598,  139  N.  W.  345. 

Maggie  Maloy,  when  sued  on  a  judgment  against  an- 
other person  named  Margaret  Maloy,  will  not  be  estopped 
from  questioning  its  validity  by  the  fact  that  she  did  not 
inform  the  sheriff,  when  he  told  her  that  he  had  an  exe- 
cution against  her,  that  no  summons  had  ever  been  served 
upon  her;  or  that  she  did  not,  after  learning  that  a  judg- 
ment had  been  entered,  move  to  have  it  set  aside;  or  that 
she  did  not  appear  and  resist  application  for  leave  to  sue 
upon  the  judgment. — Shenkberg  Co.  v.  Maloy,  34  S.  D. 
103,  147  N.  W.  286. 

Texas.  One  who  induces  the  purchase  of  land  or  other 
property  as  being  the  property  of  a  third  person  is  es- 
topped from  asserting  any  claim  to  such  property. — Mil- 
lican  v.  McNeill,  102  Tex.  192,  114  S.  W.  106;  Moody  v. 
Bonham,    (Tex.  Civ.  App.),   178  S.  W.  1020. 

He  who  has  been  silent  as  to  his  alleged  rights  when 
he  ought  in  good  faith  to  have  spoken,  shall  not  be  heard 
to  speak  when  he  ought  to  be  silent. — Bennett  v.  Atte- 
berry,  105  Tex.  119,  145  S.  W.  582;  Dudley  v.  Strain,  (Tex. 
Civ.  App.),  130  S.  W.  778. 

No  man  shall  construct  a  right  upon  his  own  wrong. 
Whatever  he  has  said  or  implied  wrongfully  to  his  own 
advantage,  that  he  shall  be  bound  by  when  it  may  turn 
to  his  disadvantage,  however  false  it  may  be  in  fact. — 
El  Paso  &  S.  W.  R.  Co.  v.  Eichel  &  Weikel.  (Tex.  Civ. 
App.),  130  S.  W.  922;  Russell  v.  Hamilton,  (Tex.  Civ.  App.), 
174  S.   W.  705. 

Though  there  may  have  been  a  conspiracy  to  defraud 
a  person  who  conveys  lands,  yet  he  will  be  estopped  to 
assert  bad  faith  in  the  grantee  and  avoid  the  conveyance, 
where  it  appears  that  before  the  conveyance  he  assured 


750  PRESUMPTIONS  AND  ESTOPPELS 

the  grantee  that  the  transaction  was  satisfactory  to  him. 
— Neff  v.  Heimer,  (Tex.  Civ.  App.),  163  S.  W.  140. 
Utah.  By  issuing  a  certificate  of  corporate  stock  to  a 
person,  the  corporation  holds  such  person  out  as  the  owner 
thereof  with  capacity  to  transfer  the  same,  and  when  an- 
other person  presents  the  same  with  proper  assignment 
to  him  from  the  original  holder,  the  corporation  cannot 
refuse  to  transfer  the  stock  on  its  books  to  such  assignee. 
— Mundt  v.  Commercial  Nat.  Bank,  35  Utah  90,  99  P.  454. 

Where  the  facts  lead  to  an  irresistible  conclusion  that 
an  agent  had  apparent  authority  to  receive  payment  of  a 
note,  although  he  had  not  possession  thereof  when  the 
payment  was  made,  the  principal  will  be  estopped  from 
claiming  nonpayment  after  the  agent  has  received  pay- 
ment and  absconded  without  turning  the  proceeds  over 
to  the  principal. — Campbell  v.  Gowans,  35  Utah  268,  100 
P.  397. 

Where  a  recorded  deed  contained  the  description  of 
four  adjoining  lots,  two  of  which  were  admittedly  con- 
veyed, and  it  did  not  appear  how  the  other  two  came  to 
be  inserted  in  the  deed,  and  a  third  person,  relying  upon 
the  conduct,  statements,  and  disclaimer  of  ownership  by 
the  grantee,  purchased  from  the  original  grantor  the  lots 
in  controversy,  such  grantee,  after  the  purchaser  has 
made  valuable  and  permanent  improvements  upon  the 
property,  will  be  estopped  to  deny  the  title  of  such  pur- 
chaser.—McKeon  v.  Hedges,  45  Utah  383,  146  P.  286. 

Washington.  One  who  acquiesces  in  the  construction  and 
operation  of  a  public  utility  on  his  land  is  estopped  to 
maintain  ejectment  or  a  suit  for  injunction,  but  will  be 
left  to  his  action  for  damages. — Kakeldy  v.  Columbia  & 
P.  S.  Ry.  Co.,  37  Wash.  675,  80  P.  206;  Domrese  v.  City 
of   Roslyn,   89   Wash.   106,   154   P.   140. 

Recognizing  the  general  rule  that  where  a  person  wrong- 
fully or  negligently,  by  his  acts  or  representations,  causes 
another  who  has  a  right  to  rely  upon  such  acts  or  repre- 
sentations to  change  his  condition  for  the  worse,  the  party 
making  such  representations  shall  not  be  allowed  to  plead 
their  falsity  for  his  own  advantage;  and  also  the  rule  that 


PRESUMPTIONS  AND  ESTOPPELS  751 

admissions  made  by  an  executor  or  administrator  in  the 
course  of  judicial  proceedings  are  made  for  the  benefit  of 
the  estate,  and  do  not  conclude  his  individual  right  by 
way  of  estoppel,  the  court  held  in  the  instant  case  that 
the  administrator,  after  petitioning  for  leave  to  sell  real 
estate  alleged  to  belong  to  the  estate  he  represented,  and 
representing  it  to  be  a  sale  of  the  entire  estate,  selling 
and  conveying  the  same  as  such,  but  afterwards  gave  a 
quitclaim  deed  to  another  party  for  the  property,  was  es- 
topped to  assert  any  interest  in  the  property. — Carruthers 
v.  Whitney,  56  Wash.  327,  105  P.  831. 

One  who  remains  silent  when  duty  commands  him  to 
speak  if  he  ever  intends  to  speak,  will  not  be  heard  to 
assert  a  right  which  equity  and  good  conscience  forbid 
that  he  have.  This  maxim  applied  to  estoppel  of  county 
to  assert  the  invalidity  of  a  tax  sale  of  property  acquired 
in  its  proprietary  capacity. — Franklin  County  v.  Carstens, 
68  Wash.  176,  122  P.  999. 

Wyoming.  Where  one  consents  to  the  occupation  of  his 
land  by  another  possessing  the  power  of  eminent  domain 
for  the  purpose  of  such  occupation,  without  either  requir- 
ing payment,  or  proceedings  to  condemn,  and  allows  the 
party  entering  to  expend  money  and  labor,  he  will  be  re- 
garded as  having  acquiesced  therein,  and  as  being  estopped 
from  maintaining  trespass  or  ejectment,  and  is  restricted 
to  a  suit  for  damages. — Gustin  v.  Harting,  20  Wyo.  1,  121 
P.   522. 

Where  an  easement  common  to  all  the  adjoining  land- 
owners has  been  orally  agreed  upon  between  them,  with 
regard  to  which  they  have  made  improvements,  each  will 
be  estopped  from  contesting  the  rights  of  the  others  to 
its  enjoyment,  which  estoppel  will  extend  to  purchasers 
from  them  with  notice. — Forde  v.  Libby,  22  Wyo.  464,  143 
P.    1190. 

ESTOPPEL    BY    NEGLECTING    DUTY. 

Arkansas.  An  insolvent  debtor  will  not  be  allowed  to 
permit  his  lands  to  forfeit  for  taxes  and  be  bought  in  in 
his  wife's  name,  even  with  her  means,  to  defeat  the  pay- 
ment of  his  debts,  and  such  transaction  will  be  treated, 


752  PRESUMPTIONS  AND  ESTOPPELS 

so  far  as  his  creditors  are  concerned,  as  a  redemption, 
in  effect,  of  the  lands  by  him. — Herrin  v.  Henry,  75  Ark. 
273,  87  S.  W.  430;  Fluke  v.  Sharum,  118  Ark.  229,  176 
S.   W.   684. 

Where  a  policy  of  insurance  is  subject  to  forfeiture  in 
case  the  property  becomes  vacant,  and  the  insured,  after 
it  becomes  vacant,  so  notifies  the  agent  of  the  insurer  and 
is  informed  by  him  that  the  policy  will  be  continued  in 
force,  and  it  further  appears  that  he  had  authority  to 
so  continue  it,  the  insurer  or  the  agent  will  be  estopped 
from  asserting  a  forfeiture. — Home  Fire  Ins.  Co.  v.  Wil- 
son, 118  Ark.  442,  176  S.  W.  688. 

But  in  such  case  if  the  agent  does  nothing  in  his  capa- 
city as  such  to  mislead  the  insured,  his  principal  will  not 
be  estopped  from  setting  up  the  forfeiture. — Home  Fire 
Ins.  Co.  v.  Wilson,  109  Ark.  324,  159   S.  W.  1113. 

Where  an  automobile  was  offered  as  a  prize  by  a  news- 
paper to  any  person  securing  the  largest  number  of  sub- 
scribers to  the  paper  it  appeared  that  the  newspaper  was 
not  the  owner,  it  was  competent  to  show  that  the  owner 
had  held  the  newspaper  out  to  have  authority  to  deliver 
the  car  to  the  successful  contestant,  and  that  it  was  a 
question  for  the  jury  as  to  whether  the  owner  had  estopped 
himself  from  denying  the  ownership  to  be  in  the  news- 
paper.—Jones  v.   Burks,  110  Ark.   108,  161   S.  W.   177. 

An  automobile  was  offered  as  a  prize  under  the  same 
conditions,  but  in  that  case  there  was  no  evidence  what- 
ever to  warrant  the  conclusion  that  the  owner  had  es- 
topped himself  from  asserting  ownership. — Watkins  v. 
Curry,  103  Ark.  414,  147  S.  W.  43. 

Where  a  vendee  is  in  possession  of  lands  and  bound  to 
the  payment  of  taxes,  his  attorney,  with  full  knowledge, 
will  not  be  permitted  to  redeem  the  lands  from  a  tax  sale 
caused  by  the  failure  of  the  vendee  to  pay  the  taxes,  and 
assert  such  title  as  against  the  vendor's  lien,  where  he 
had  wilfully  withheld  information  from  the  vendor  of  the 
vendee's  inability  to  redeem  the  lands,  and  had  repre- 
sented to  the  contrary,  that  the  vendee  would  probably 
redeem  if  given  time,  and  a  finding  that  he  intended  to 


PRESUMPTIONS  AND  ESTOPPELS  753 

defeat  the  vendor's  lien  will  be  justified. — Blackwell  v. 
Kinney,  119  Ark.  578,  180  S.  W.  757. 

California.  A  real  estate  broker  who  was  employed  by 
plaintiff  to  sell  property  represented  to  him  that  he  had 
a  cash  deposit  from  a  prospective  customer  to  secure  the 
performance  of  a  contract  to  purchase,  and  the  plaintiff, 
relying  upon  the  representation,  approved  the  contract. 
The  prospective  purchaser  had  given  the  broker  a  note 
in  lieu  of  a  cash  deposit,  and  afterwards  failed  to  perform 
the  contract  and  became  insolvent.  In  an  action  by  plain- 
tiff against  the  broker  to  recover  the  amount  of  the  de- 
posit, it  was  held  that  the  case  came  directly  within  the 
rule  of  estoppel  and  the  provisions  of  the  statute  (§  1962, 
subdivision  3,  C.  C.  P.),  and  that  the  agent  could  not  deny 
that  the  deposit  was  made  in  cash,  although  it  also  ap- 
peared that  plaintiff  had  suffered  no  pecuniary  loss  by 
the  transaction.— Wood  v.  Blaney,  107  Cal.  291,  40  P.  428. 

One  executing  a  commission  to  buy  property  jointly  for 
himself  and  another,  who  buys  at  a  lower  price,  but  falsely 
represents  to  the  other  that  he  paid  a  higher  price,  and 
receives  pay  for  the  other's  share  at  the  fictitious  price 
will  be  estopped  to  deny  that  the  other  relied  on  the  false 
representation.— Smith  v.  Elderton.  16  Cal.  App.  424,  117 
P.   563. 

Fraud,  actual  or  constructive,  against  the  opposite  party, 
is  an  essential  element  of  an  estoppel  against  the  legal 
owner  of  land  to  prevent  him  from  asserting  his  title. — 
Boggs  v.  Merced  M.  Co.,  14  Cal.  368. 

So  under  the  statute  (§  1962,  subdivision  3.  C.  C.  P.), 
and  the  rule  laid  down  in  Scott  v.  Jackson,  89  Cal.  262, 
26  P.  898,  that  where  a  person  tacitly  encourages  an  act 
to  be  done,  he  cannot  afterwards  exercise  his  legal  right 
in  opposition  to  such  consent,  if  his  conduct  or  acts  of 
encouragement  induced  the  other  party  to  change  his  po- 
sition so  that  he  will  be  pecuniarily  prejudiced  by  asser- 
tion of  such  adversary  claim,  where  the  father  deeded 
lands  to  one  son  with  the  understanding  that  the  father 
was  to  have  possession  and  enjoyment  thereof  during  his 
life,  and  that  the  deed  should  not  be  recorded  until  after 
his  death,  and   subsequently   conveyed   the   same  lands  to 


754  PRESUMPTIONS  AND  ESTOPPELS 

such  son  and  another  son  as  tenants  in  common;  it  was 
held  that  the  former  son  was  not  estopped  from  claiming 
the  whole  estate  by  his  silence  respecting  the  first  deed, 
where  the  latter  son  had  remained  with  his  father  upon 
the  land  and  expended  money  and  labor  thereupon,  but 
by  doing  so  had  suffered  no  pecuniary  loss. — Treat  v. 
Treat.   170  Cal.   329,   150  P.   53. 

Colorado.  Where  defendant  had  control  of  plaintiff's 
water  for  irrigation  which  plaintiff  had  bought  of  him,  and 
had  used  the  same  to  his  own  advantage  with  consent  of 
plaintiff  until  plaintiff  should  need  it,  when  sued  for  the 
water  he  cannot  defend  upon  the  ground  of  laches  or  non- 
use  of  the  water  by  the  plaintiff. — Wannamaker  v.  Pen- 
dleton,  21   Colo.   App.   174,   121   P.   108. 

Where  an  agent  accepts  a  conveyance  of  real  estate  in 
satisfaction  of  a  debt  due  jointly  to  himself  and  another, 
when  sued  by  his  principal  for  the  latter's  portion  of  the 
debt  he  will  be  estopped  from  denying  the  right  of  the  prin- 
cipal to  sue  as  for  money  had  and  received. — Brown's  Es- 
tate v.  Stair,  25  Colo.  App.  140,  136  P.  1003. 

A  lessee  obligated  to  pay  taxes  cannot  redeem  in  his 
own  right  from  a  tax  sale  which  resulted  from  his  failure 
to  pay  the  taxes. — Schneider  v.  Hurt,  25  Colo.  App.  335, 
138  P.  422. 

Kansas.  Where  the  holder  of  a  note  assigned  to  him  for 
collection  only,  brings  suit  thereon  in  his  own  name,  and 
obtains  the  benefit  of  the  amount  of  the  note  for  his  own 
use,  in  an  action  against  him  by  the  original  payee  for  the 
amount  of  the  note,  he  is  not  in  a  position  to  raise  the 
question  whether  the  maker  of  the  note  is  not  still  liable 
to  the  payee. — McWhirt  v.  McKee,  6  Kan.   412. 

Where  an  executor,  in  excess  of  his  authority  executed 
a  lease  while  he  was  himself  the  owner  of  the  interest  of 
one  of  the  legatees  and  soon  thereafter  acquired  the  in- 
terest of  another,  and  the  lessee  had  no  notice  of  the  want 
of  authority,  such  executor  will  be  estopped  from  denying 
that  his  interest  in  the  premises  is  not  subject  to  the 
lease. — Lanyon  Zinc  Co.  v.  Freeman,  68  Kan.  691,  75  P. 
995. 


PRESUMPTIONS  AND  ESTOPPELS  755 

Nebraska.  Where  a  real  estate  broker  was  instructed  to 
sell  lands  including  the  growing  crops  thereupon,  made 
the  sale  and  was  paid  his  commission  therefor,  but  with- 
out the  knowledge  of  the  vendor,  reserved  a  part  of  the 
crops  to  himself,  he  was  held  to  be  estopped  to  assert 
that  he  was  not  the  agent  of  the  vendor. — Northup  v. 
Bathrick,  80  Neb.  36,  113  N.  W.  808. 

South  Dakota.  Where  a  warehouseman  had  been  informed 
that  certain  property  would  be  delivered  to  him  by  a  ten- 
ant of  the  informant,  and  that  such  property  belonged  to 
such  informant,  and  to  deliver  the  warehouse  receipt  there- 
for to  informant,  and  the  warehouseman,  upon  delivery  of 
the  property  by  an  employe  of  the  tenant  and  demand  by 
him,  gave  such  employe  the  receipt  therefor,  and  through 
the  latter's  fraud  the  property  was  lost  to  the  owner,  it 
was  held  that  the  rule  that  one  who  clothes  another  with 
apparent  authority  should  bear  any  loss  resulting  there- 
from, was  not  applicable,  but  that  the  warehouseman  was 
negligent  in  the  delivery  of  the  receipt  and  that  notwith- 
standing he  acted  in  good  faith,  he  would  be  estopped  from 
asserting  that  the  employe  was  the  agent  of  the  owner. 
—Johnson  v.  Bagley  Elevator  Co.,  36  S.  D.  531,  156  N.  W. 
76. 

Texas.  Where  through  fraud,  misrepresentation  and  vio- 
lation of  instructions  an  agent  has  effected  the  convey- 
ance by  the  principal  of  his  lands  to  his  injury,  the  agent 
will  be  estopped  to  deny  that  the  title  to  the  lands  passed 
by  the  conveyance. — Tyler  Bldg.  &  L.  Ass'n  v.  Beard  & 
Scales,  106  Tex.  554,   171  S.  W.  1122. 

Washington.  Where  a  bank  took  a  mortgage  on  insured 
property  and  had  the  insurance  assigned  to  it,  but  assigned 
the  mortgage  prior  to  the  loss,  yet,  notwithstanding,  made 
proofs  of  loss,  asserting  ownership  of  the  mortgage  and 
also  assured  the  party  who  repaired  the  building  that  the 
insurance  would  be  turned  over  to  him  in  reimbursement, 
and  the  insurer  refused  to  pay  the  bank  on  the  ground 
that  it  had  assigned  the  mortgage,  the  bank  was  held  to 
be  estopped  to  deny  liability  for  the  repairs. — Manny  v. 
Spokane  State  Bank,  78  Wash.  230,   13S  P.   682. 


756  PRESUMPTIONS  AND  ESTOPPELS 

When  the  testimony  of  a  witness  in  replevin  sustains  the 
contention  of  the  defendant  who  claimed  the  article  re- 
plevied the  witness  will  be  estopped  from  setting  up  title 
to  the  article  in  himself. — Masterson  v.  Union  Bank  &  T. 
Co.,  86  Wash.  560,  150  P.   1126. 

Article  103. 
estoppel  of  tenant  and  licensee. 

No  tenant  and  no  person  claiming  through  any 
tenant  of  any  land  or  hereditament  of  which  he 
has  been  let  into  possession,  or  for  which  he  has 
paid  rent,  is,  till  he  has  given  up  possession,  per- 
mitted to  deny  that  the  landlord  had,  at  the  time 
when  the  tenant  was  let  into  possession  or  paid 
the  rent,  a  title  to  such  land  or  hereditament ;  (a) 
and  no  person  who  came  upon  any  land  by  the 
license  of  the  person  in  possession  thereof  is, 
whilst  he  remains  on  it,  permitted  to  deny  that 
such  person  had  a  title  to  such  possession  at  the 
time  when  such  license  was  given,  (b) 

ESTOPPEL  OF  TENANT. 
California.  One  occupying  the  relation  of  tenant  under 
an  assigned  lease  is  estopped  from  denying  the  validity 
of  the  title  under  which  he  took  possession  of  the  premi- 
ses.— Byington  v.  Sacramento  Valley  W.  S.  Canal  Co.,  170 
Cal.  124,  148  P.  791. 

The  rule  of  law  that  a  tenant  will  not  be  permitted  to 
deny  the  title  of  his  landlord  applies  to  a  lessee  of  a  per- 
son in  lawful  possession  of  lands  as  a  locator  under  the 
mining  laws.  That  the  lands,  subsequent  to  the  time  the 
cause  of  action  arose,  were  withdrawn  from  entry  as  min- 

(a)  Doe  v.  Barton,  11  A.  &  E.  307;  Doe  v.  Smyth,  4  M.  & 
S.  347;   Doe  v.  Pegg,  1  T.  R.   760   (note);    [5  Am.  Law.  Rev.l]. 

(b)  Doe  v.  Baytup,  3  A.  &  E.  188. 


PRESUMPTIONS  AND  ESTOPPELS  757 

eral  lands,  is  immaterial. — Johnson  v.  Hinkel,  29  Cal.  App. 
78,   154  P.  487. 

Colorado.  A  tenant  is  estopped  from  denying  the  title  of 
his  landlord  as  long  as  he  is  in  possession  of  the  premises 
under  the  lease.  That  the  landlord  had  no  title  at  the 
time  of  the  creation  of  the  relationship  is  immaterial, 
nor  does  the  fact  that  the  property  leased  is  public  prop- 
erty prevent  the  operation  of  the  estoppel  so  long  as  the 
title  of  the  land  is  the  same  as  it  was  at  the  time  the 
tenancy  was  created.  So  long  as  the  tenant  is  not  dis- 
turbed in  his  possession,  it  is  immaterial  whether  the  title 
of  the  landlord  is  valid  or  not. — Wallbrecht  v.  Blush,  43 
Colo.   329,   95   P.   927. 

A  tenant  under  a  lease  assumed  to  make  monthly  pay- 
ments on  a  mortgage  on  the  demised  property.  He  failed 
to  do  so  and  by  agreement  with  the  mortgagee  the  prop- 
erty was  sold  at  private  sale  to  an  employe  of  the  lessee 
who  transferred  the  same  to  the  lessee.  There  was  no 
visible  change  of  possession,  and  it  was  held  that  the 
lessor  could  insist  that  the  sale  inured  to  his  benefit. — 
Dailey  v.  Aspen  Democrat  Pub.  Co.,  46  Colo.  145,  103  P. 
303. 

A  tenant  is  not  permitted  to  deny  his  landlord's  title, 
and  the  rule  extends  to  an  agent  in  possession  of  the  prop- 
erty of  his  principal. — Wannamaker  v.  Pendleton,  21  Colo. 
App.    174,    121    P.    108. 

Kansas.  The  tenant's  estoppel  to  deny  his  landlord's  title 
inures  to  the  benefit  of  any  person  to  whom  the  landlord's 
title  may  pass. — Brenner  v.  Bigelow,  8  Kan.  496. 

Where  a  tenant  enters  into  possession  under  a  lease 
which  the  lessor  had  no  authority  to  make  and  gives  his 
note  for  the  rent,  after  the  expiration  of  the  term,  he  as 
well  as  his  surety  on  the  note  will  be  estopped  from  deny- 
ing the  authority  of  the  lessor. — Oliver  v.  Gary,  42  Kan. 
623,  22  P.  733. 

Nebraska.  The  general  rule  is  that  a  tenant  having  ac- 
quired possession  under  a  lease,  his  possession  and  that 
of  his  lessor  are  identical,  and,  as  between  the  parties,  he 
is  estopped  to  assert  or  admit  that  such  joint  possession 


758  PRESUMPTIONS  AND  ESTOPPELS 

is  wrongful.  This  rule  holds  good  in  actions  of  forcible 
entry  and  detainer. — Wilson  v.  Lyons,  (Neb.),  94  N.  W. 
636. 

Nevada.  The  contract  of  lease  implies  not  only  recogni- 
tion of  the  landlord's  title  but  a  promise  to  surrender  the 
possession  to  him  at  the  termination  of  the  lease,  and  the 
tenant,  therefore,  whilst  retaining  possession,  is  estopped 
to  deny  the  landlord's  rights;  and  this  rule  extends  to 
every  person  who  enters  under  lessees  with  knowledge 
of  the  terms  of  the  lease  whether  by  operation  of  law,  or 
by  purchase  or  assignment. — Fitchett  v.  Henley,  31  Nev. 
326,  104  P.  1060. 

Oklahoma.  Where  the  title  to  the  demised  premises  had 
reverted  to  the  government  during  the  tenancy,  and  both 
the  landlord  and  tenant  were  claimants  for  the  property 
under  the  townsite  laws,  the  tenant,  having  entered  into 
possession  under  the  landlord,  could  not  deny  the  latter's 
right  to  possession  and  claim  that  he  himself  was  in 
such  possession  as  would  entitle  him  to  recognition  as 
an  occupying  tenant  under  the  townsite  laws. — Young 
v.  Severy,  5  Okl.  630,  49  P.  1024. 

Under  the  general  doctrine  that  a  tenant,  during  the 
continuance  of  his  possession  under  the  lease  cannot  buy 
in  and  set  up  a  title  adverse  to  his  landlord,  a  tenant  who 
buys  of  his  landlord  the  property  leased,  which  is  subject 
to  a  mortgage  at  the  time  of  his  entry,  and  also  an  out- 
standing title,  cannot  set  up  such  claims  against  the  mort- 
gagee. — Standifer  v.   Morris,   25   Okl.   802,   108   P.   413. 

Oregon.  Where  a  purchaser  enters  into  possession  of 
land  under  an  executory  contract,  which  leaves  the  legal 
title  in  the  vendor,  and  contemplates  a  further  conveyance 
of  the  complete  title,  his  entry  will  be  in  subordination  to 
the  legal  title,  and  in  such  case,  as  also  in  the  case  of  a 
lessee,  and  other  similar  cases,  where  one  is  under  the 
owner  of  the  legal  title,  a  privity  exists  which  precludes 
the  idea  of  a  hostile  or  tortious  possession,  that  could 
silently  ripen  into  an  adverse  possession  under  the  statute 
of  limitations. — Anderson  v.  McCormick,  18  Or.  301,  22 
P.  1062;   Crowley  v.  Grant,  63  Or.  212,  127  P.  28. 


PRESUMPTIONS  AND  ESTOPPELS.  759 

A  tenant  cannot  deny  the  title  of  his  landlord,  and  his 
successor  is  in  no  better  position. — Rouse  v.  Riverton  Coal 
&   D.   Co..   71   Or.   154.   142   P.   343. 

South  Dakota.  A  tenant  or  one  holding  under  him  is  es- 
topped from  asserting  that  the  landlord  has  no  title. 
Where  he  takes  possession  and  enjoys  the  use  of  the 
premises  under  a  lease  he  is  estopped  from  contesting  the 
validity  of  the  lease. — Dobbs  v.  Atlas  Elev.  Co.,  25  S.  D. 
177,   126  N.  W.   250. 

Texas.  A  tenant  cannot  dispute  his  landlord's  title,  and 
this  rule  applies  as  well  in  suits  for  rent  as  those  for  the 
recovery  of  possession;  and  also  applies  to  one  who  ob- 
tains or  claims  possession  through  or  under  the  tenant  of 
another. — Richardson  v.  Houston  Oil  Co.,  (Tex.  Civ.  App.), 
176  S.  W.  628;  Fahey  v.  Kares,  (Tex.  Civ.  App.),  181  S. 
W.  782. 

Washington.  Where  a  tenant  owns  a  building  but  not  the 
land  upon  which  it  stands,  with  the  right  to  remove  the 
building,  but,  without  exercising  that  right,  pays  rent  under 
a  lease  from  the  owner  of  the  land,  he  will  be  estopped  to 
recover  the  amount  of  such  rent  as  was  paid  for  the  use 
of  the  building. — Allen  v.  Migliavacca  Realty  Co.,  74  Wash. 
347,   133  P.   580. 

EXCEPTIONS  TO  ESTOPPEL  OF  TENANT. 
Arkansas.  It  is  a  general  rule  that  a  tenant  who  does  not 
surrender  back  to  his  landlord  possession  of  the  demised 
premises  will  not  be  permitted,  so  long  as  he  holds  the  pos- 
session which  he  originally  derived  from  his  landlord,  to 
deny  the  latter's  title;  but  this  rule  is  limited  to  the  title 
that  the  landlord  had  at  the  inception  of  the  tenancy.  The 
tenant  is  only  estopped  to  deny  that  which  he  has  once  ad- 
mitted.  He  may  show  that  the  right  and  title  of  the  land- 
lord existing  at  the  creation  of  the  tenancy  has  since  that 
time  been  terminated,  expired  or  extinguished. — Bettlson 
v.  Budd.  17  Ark.  552;  Earl's  Administrator  v.  Hale's  Ad- 
ministrator.  31   Ark.  470. 

A  tenant  cannot  acquire  an  adverse  title  as  against  his 
landlord,  but  may  renounce  his  holding  as  tenant  and  set 
up  a  right  in  himself  after  notice  to  the  landlord,  and  a 


760  PRESUMPTIONS  AND  ESTOPPELS. 

third  person  who  purchases  of  such  tenant  without  notice 
of  the  tenancy  an  adverse  title  may  set  it  up  against  the 
landlord.— Gee  v.  Hatley,  114  Ark.  376,  170  S.  W.  72. 
California.  The  rule  that  it  is  necessary  to  surrender 
possession,  and  again  enter,  before  possession  can  become 
adverse,  obtains  only  where  the  person  claiming  to  hold 
adversely  was  put  into  possession  by  the  owner,  or  has  at 
least  held  possession  under  such  owner,  not  where  one 
holds  under  a  person  who  is  not  the  real  owner. — Millett 
v.  Lagomarsino,  107  Cal.   102,  40  P.  25. 

Kansas.  A  tenant  having  obtained  possession  of  the 
premises  from  his  landlord  cannot  say  that  he  holds  in 
opposition  to  him,  and  he  cannot  refuse  to  return  posses- 
sion to  the  landlord  on  the  ground  that  the  title  under 
which  that  possession  was  secured  is  defective;  but  this 
estoppel  extends  to  those  matters  only  which  affect  the 
relations  growing  out  of  the  lease,  and  there  is  no  valid 
reason  why  an  action  to  quiet  title,  or  other  proper  action, 
may  not  be  prosecuted  and  defended  for  the  purpose  of 
settling  disputes  concerning  title  which  leave  the  relations 
of  landlord  and  tenant  unaffected. — Oliver  v.  Gary,  42  Kan. 
623,  22  P.  733. 

Nebraska.  While  a  tenant  may  not  dispute  his  landlord's 
title,  yet  the  lessee,  in  an  action  by  the  lessor  to  recover 
rent,  may  show  that  the  lessor  has  sold  and  conveyed  the 
premises  without  reserving  the  rent  thereafter  to  become 
due,  and  may  thus  defend  such  action  without  having  been 
evicted  by  the  paramount  title  or  disturbed  in  his  posses- 
sion.—Allen  v.   Hall,   66  Neb.  84,  92  N.  W.   171. 

A  tenant  when  sued  for  possession  may  show  in  defense 
that  in  order  to  avoid  eviction  by  the  owner  of  a  title 
paramount  to  that  of  his  landlord,  who  was  plaintiff,  the 
defendant  attorned  to  such  owner  of  the  paramount  title. 
—Bowman  v.  Goodrich,  94  Neb.  696,  144  N.  W.  240. 

Nevada.  None  of  the  exceptions  to  the  rule  that  a  ten- 
ant is  estopped  from  denying  the  title  of  his  landlord  will 
allow  a  tenant  to  assert  that  the  landlord  falsely  repre- 
sented that  he  had  title,  where,  in  fact  he  did  not,  unless 
the    tenant    shows    injury    thereby.      Prior    possession    is 


PRESUMPTIONS  AND  ESTOPPELS.  761 

prima  facie  evidence  of  title,  and,  in  the  absence  of  a  bet- 
ter title,  must  be  deemed  equivalent  to  title;  and  the 
estoppel  does  not  depend  on  the  validity  of  the  landlord's 
title.  If  the  tenant  is  evicted  by  one  who  has  the  right 
of  possession  he  is  excused  from  the  payment  of  rent. — 
Fitchett  v.  Henley,  31  Nev.  326,  104  P.  1060. 

The  rule  that  a  tenant  cannot  dispute  his  landlord's 
title  has  no  application  where  the  relationship  of  landlord 
and  tenant  is  not  admitted,  but  is  the  very  issue  in  the 
case,  as,  where  it  is  alleged  in  defense  of  an  action  for 
possession  that  the  instrument  under  which  defendant 
took  possession,  in  form  a  lease,  was  in  fact  a  part  of  a 
transaction  the  other  part  of  which  was  the  execution  by 
defendant  of  a  deed  for  the  premises  to  the  plaintiff,  that 
the  two  instruments  constituted  security  for  money  loaned, 
and  proof  of  such  defense  is  competent. — Yori  v.  Phenix, 
38  Nev.  277,  149  P.  180;  (Phenix  v.  Bijelich,  30  Nev.  257,  95 
P.  351,  distinguished). 

North  Dakota.  A  tenant  is  not  estopped  to  deny  his  land- 
lord's title  in  a  statutory  action  to  determine  adverse 
claims  to  real  property,  but  only  in  actions  arising  out 
of  the  relation  of  landlord  and  tenant. — Hebden  v.  Bina, 
17  N.  D.  235,  116  N.  W.  85. 

Oklahoma.  It  is  a  general  rule  that  a  tenant  who  does  not 
surrender  back  to  his  landlord  possession  of  the  demised 
premises  will  not  be  permitted,  so  long  as  he  holds  the 
possession  which  he  originally  derived  from  his  landlord, 
to  deny  the  latter's  title;  but  this  rule  is  limited  to  the 
title  that  the  landlord  had  at  the  inception  of  the  ten- 
ancy. The  tenant  is  only  estopped  to  deny  that  which  he 
has  once  admitted.  He  may  show  that  the  right  and  title 
of  the  landlord  existing  at  the  creation  of  the  tenancy 
has  since  that  time  been  terminated,  expired  or  extin- 
guished.—Indian  Land  &  T.  Co.  v.  Clement,  22  Okl.  40, 
109  P.  1089;  Welchi  v.  Johnson.  27  Okl.  518,  112  P.  989. 
Texas.  In  an  action  of  forcible  entry  and  detainer,  where 
the  defendant  entered  under  a  lease,  he  may  show  that 
subsequent  to  his  entry  he  has  himself  acquired  the  les- 
sor's title  to  the  land,  either  from  the  lessor  or  someone 
else—  Camley   v.   Stanfield,   10  Tex.   550. 


762  PRESUMPTIONS  AND  ESTOPPELS 

And  he  may  lawfully  attorn  to  a  third  party  who  has 
purchased  at  execution  sale  the  title  of  his  landlord. — 
Andrews  v.  Richardson,  21  Tex.  287;  Gallager  v.  Bennett, 
38  Tex.  295;  Hartzog  v.  Seeger  Coal  Co.,  (Tex.  Civ.  App.), 
163  S.  W.  1055. 

To  the  rule  that  a  tenant  cannot  dispute  the  title  of 
his  landlord,  the  exceptions  are  that  a  tenant  of  one  who 
has  no  title  may  acquire  the  superior  title  and  show  title 
in  himself  in  defense  of  a  suit  of  trespass  brought  against 
him  by  his  lessor.  Another  exception  is  that  one  who 
by  mistake  or  through  fraud  is  induced  to  become  the 
tenant  of  another  is  not  estopped  to  deny  the  title  of  his 
landlord. — Richardson  v.  Houston  Oil  Co.,  (Tex.  Civ.  App.), 
176  S.  W.  628. 

Washington.  A  tenant  is  usually  estopped  to  deny  his 
landlord's  title,  regardless  of  its  validity;  but  when  the 
tenant  in  possession  is  induced  to  accept  another  as  his 
landlord,  through  the  fraud  or  misrepresentation  of  such 
other,  the  estoppel  to  deny  the  landlord's  title  will  not  be 
effective. — Allen  v.  Migliavacca  Realty  Co.,  74  Wash.  347, 
133   P.   580. 

ESTOPPEL  OF   LICENSEE. 

Arkansas.  The  possession  of  a  licensee  is  considered  the 
possession  of  him  upon  whose  pleasure  it  continues. — 
Pulaski  County  v.  State,  42  Ark.  118. 

A  lessee  of  a  purchaser  is  as  fully  estopped  to  deny 
the  title  of  the  purchaser's  vendor  as  is  a  sub-lessee  to 
deny  his  lessor's  title  or  that  of  the  landlord. — Dunlap 
v.  Moose,  98  Ark.  235,  135  S.  W.  824;  Adams  v.  Primmer, 
102  Ark.  380,  144  S.  W.  522. 

New  Mexico.  The  possession  of  a  licensee  is  considered 
the  possession  of  him  upon  whose  pleasure  it  continues. 
-De  Bergere  v.  Chaves,  14  N.  M.  352,  93  P.  762. 

ESTOPPEL  OF  VENDEE  OR  PURCHASER. 

Arizona.  The  doctrine  that  a  vendee  under  a  contract  to 
purchase  may  not  dispute  his  vendor's  title,  nor  purchase 
and  assert  against  his  vendor  an  adverse  title  will  not 
extend   to  land   not  within  the  agreement,   possession  of 


PRESUMPTIONS  AND  ESTOPPELS.  763 

which  he  does  not  take  under  the  contract,  but  by  another 
right. — Butterfield  v.  Nogales  Copper  Co.,  12  Ariz.  55,  95 
P.  182. 

Where  there  is  an  agreement  to  buy  and  sell  land,  and 
without  the  consideration  being  paid,  the  buyer  enters  into 
possession,  the  entry  and  possession  are  in  subordination 
to  the  title  of  the  seller  until  the  stipulated  payment  Is 
made.  The  buyer  acquires  no  better  right  or  estate  in 
the  premises  than  his  vendor  had,  and,  like  a  tenant,  he 
cannot  deny  the  title  of  the  vendor  unless  he  repudiates 
the  contract  and  asserts  an  adverse,  hostile  title,  where- 
upon he  becomes  a  trespasser. — Bennett  v.  United  States 
Land,  T.  &  L.  Co..  16  Ariz.  138,  141  P.  717. 

Arkansas.  One  who  purchases  property  of  a  vendee  hold- 
ing a  bond  for  a  title  from  the  owner  and  goes  into  pos- 
session, cannot  assert  any  other  title  than  that  acquired 
from  such  vendee  without  first  repudiating  the  title  of  his 
vendor  and  holding  adversely  to  the  true  owner. — Little 
Rock  &  Ft.  S.  Ry.  Co.  v.  Rankin,  107  Ark.  487,  156  S.  W. 
431. 

California.  One  in  possession  of  property  under  a  con- 
tract to  purchase  same  is  estopped  from  denying  his  ven- 
dor's title  until  he  repudiates  the  contract. — Woodard  v. 
Hennegan,  128  Cal.  293,  60  P.  769. 

Idaho.  A  purchaser  in  possession  under  an  executory  con- 
tract for  the  sale  of  real  estate  is  estopped  from  denying 
his  vendor's  title.— Page  v.  Bradford-Kennedy  Co.,  19  Ida. 
685,  115  P.  694. 

Where  a  purchaser  of  land  has  notice  that  the  con- 
veyance to  his  vendor  was  but  a  mortgage  although  ab- 
solute in  form,  he  will  not  be  heard  to  deny  the  existence 
of  a  vendor's  lien  in  favor  of  his  grantor's  vendor. — Smith 
V.  Schultz.   2:'.   [da.   144,  129  P.  640. 

Montana.  A  tenant  who  goes  into  possession  as  such  is 
estopped  from  denying  the  title  of  his  landlord.  And  so 
where  a  mortgagee  is  in  possession  and  one  enters  under 
an  agreement  to  purchase  the  mortgage,  he  will  be  es- 
topped from  disputing  the  rightful  possession  of  the  mort- 
gagee.— Alderson  v.  Marshall.  7   Mont.  288,  16  P.  576. 


764  PRESUMPTIONS  AND  ESTOPPELS. 

Nebraska.  Where  land  leased  has  been  sold  under  a  de- 
cree in  a  suit  to  foreclose  a  lien  for  delinquent  taxes,  in 
which  suit  the  lessor  was  a  party  and  whose  rights  were 
foreclosed  by  such  decree,  and  such  sale  has  been  duly 
confirmed  and  a  deed  issued  to  the  purchaser  thereat,  and 
the  lessee,  upon  exhibition  to  him  of  the  sheriff's  deed, 
in  order  to  avoid  eviction  by  the  then  owner  of  the  para- 
mount title,  in  good  faith  attorns  to  him,  such  action  on 
his  part  may  be  interposed  as  a  defense  to  an  action  by 
his  lessor  to  recover  possession.— Bowman  v.  Goodrich, 
94   Neb.   696,   144   N.   W.   240. 

New  Mexico.  Where  one  enters  upon  lands  under  color  of 
title  and  thereafter  acquires  title  by  adverse  possession 
he  is  not  estopped  from  setting  up  such  title  by  reason  that 
the  title  of  his  adversary  and  his  own  paper  title  originated 
in  a  common  source. — Nehr  v.  Armijo,  9  N.  M.  325,  54 
P.  236. 

A  person  who  has  gone  into  possession  under  a  contract 
to  purchase  lands  will  not  be  allowed,  by  admitting  the 
title  of  another,  to  enjoy  that  title,  and,  in  case  of  failure 
of  proof  of  it,  hold  the  premises  himself. — De  Bergere  v. 
Chaves,  14  N.  M.  352,  93  P.  762. 

North  Dakota.  One  who  as  lessee  signs  a  lease  and  enters 
into  possession  of  premises  thereunder  is  estopped  from 
denying  his  landlord's  title. — Mower  v.  Rasmusson,  (N. 
D.),  158  N.  W.  261. 

Oklahoma.  A  tenant,  while  remaining  in  possession,  even 
after  the  expiration  of  his  term,  is  precluded,  on  the  doc- 
trine of  estoppel,  from  either  setting  up  an  adverse  title 
to  defeat  an  action  of  ejectment,  or,  without  first  sur- 
rendering possession,  making  a  contest  with  his  landlord 
over  the  title  held  by  him  at  the  time  of  securing  the 
right  of  entry.— Miller  v.  Wood,  (Okl.),  155  P.  1178. 

Oregon.  Neither  a  tenant  nor  his  successor  in  interest 
can  deny  the  title  of  the  landlord. — Rouse  v.  Riverton 
Coal  &  Devel.  Co.,  71  Or.  154,  142  P.  343. 

Texas.  A  person  who  has  gone  into  possession  under  a 
contract  to  purchase  lands  will  not  be  allowed,  by  admit- 
ting the  title  of  another,  to  enjoy  that  title,  and,  in  case 


PRESUMPTIONS  AND  ESTOPPELS.  765 

of  failure  of  proof  of  it,  hold  the  premises  himself. — How- 
ard v.  McKenzie,  54  Tex.  171;  McKelvain  v.  Allen,  58  Tex. 
383. 

But  the  rule  has  no  application  where  the  possession 
is  never  taken  under  the  contract. — Groves  v.  Whitten- 
berg,   (Tex.  Civ.  App.),  165  S.  W.  889. 

ESTOPPEL  OF  SUNDRY  CLAIMANTS. 

Oregon.  Where  a  party  recognizes  another  as  the  owner 
of  property,  he  cannot  thereafter  claim  that  the  proceeds 
of  a  sale  of  it  belong  to  a  third  party. — Ladd  &  T.  Bank 
v.  Commercial   State  Bank.   64   Or.   486,   130   P.   975. 

Texas.  Where  one  secures  possession  of  lands  by  forcibly 
ousting  another,  he  cannot  defeat  the  latter's  right  to  re- 
cover possession  by  showing  an  outstanding  title. — Rich- 
ardson v.  Houston  Oil  Co.,  (Tex.  Civ.  App.),  176  S.  W.  628. 

Aktk-le  104. 
estoppel  of  acceptor  of  bill  ok  exchange. 

No  acceptor  of  a  bill  of  exchange  is  permitted 
to  deny  the  signature  of  the  drawer  or  his  capac- 
ity to  draw,  or  if  the  bill  is  payable  to  the  order 
of  the  drawer,  his  capacity  to  endorse  the  bill, 
though  he  may  deny  the  fact  of  the  endorse- 
ment; (a)  nor  if  the  bill  be  drawn  by  procuration, 
the  authority  of  the  agent,  by  whom  it  purports 
to  be  drawn,  to  draw  in  the  name  of  the  princi- 
pal, (b)  though  he  may  deny  his  authority  to  en- 
dorse it.  (c)  If  the  bill  is  accepted  in  blank,  the 
acceptor  may  not  deny  the  fact  that  the  drawer 
endorsed  it.  (d) 


(a)  Garland    v.    Jacomb,    L.    K.    8    Kx.    216. 

(b)  Sanderson    v.    Coleman,    4    M.    A    Q.    20;t. 

(c)  Robinson    v.    Yarrow.    7    Tau.    455. 

(d)  L.   &  S.   W.    Bank   v.   Wentworth.    L.   R.    5    Ex.    D.   96. 


766      PRESUMPTIONS  AND  ESTOPPELS. 

ESTOPPEL  OF  ACCEPTOR. 

Arkansas.  The  drawee  by  accepting  a  bill  of  exchange 
acknowledges  that  he  has  funds  in  his  hands  to  the  amount 
of  the  bill.  Ordinary  orders,  drawn  by  one  person  upon 
another  in  favor  of  a  third  person  are  governed  by  the 
same  principle.— Byard  v.  Bertrand,  7  Ark.  321. 
Nebraska.  The  acceptance  of  a  draft  raises  the  presump- 
tion that  the  acceptor  has  funds  of  the  drawer  in  his  hands 
with  which  to  pay  it. — Trego  v.  Lowrey,  8  Neb.  238. 

Article  105. 
estoppel  of  bailee,  agent,  and  licensee. 

No  bailee,  agent,  or  licensee  is  permitted  to 
deny  that  the  bailor,  principal,  or  licensor,  by 
whom  any  goods  were  entrusted  to  any  of  them 
respectively  was  entitled  to  those  goods  at  the 
time  when  they  were  so  entrusted. 

Provided  that  any  such  bailee,  agent,  or  licen- 
see, may  show,  that  he  was  compelled  to  deliver 
up  any  such  goods  to  some  person  who  had  a  right 
to  them  as  against  his  bailor,  principal,  or  li- 
censor, or  that  his  bailor,  principal,  or  licensor, 
wrongfully  and  without  notice  to  the  bailee, 
agent,  or  licensee,  obtained  the  goods  from 
a  third  person  who  has  claimed  them  from  such 
bailee,  agent,  or  licensee,  (a) 

Every  bill  of  lading  in  the  hands  of  a  consignee 
or  endorsee  for  valuable  consideration,  represent- 

(a)  Dixon  v.  Hammond,  2  B.  &  A.  313;  Crossley  v.  Dixon, 
10  H.  L.  C.  293;  Gosling  v.  Birnie,  7  Bing.  339;  Hardman  v. 
Wilcock,  9  Bing.  382;  Biddle  v.  Bond,  34  L.  J.  Q.  B.  137;  Wilson 
v.  Anderton,  1  B.  &  Ad.  450.  As  to  carriers,  see  Sheridan 
v.  New  Quay,  4  C.  B.  n.  s.  618.  The  Idaho,  93  U.  S.  575; 
Staples  v.  Fillmore,  43  Conn.  510;  Lindner  v.  Brock,  40  Mich. 
618;    Dresbach    v.    Minnis,    45    Cal.    223. 


PRESUMPTIONS  AND  ESTOPPELS.  767 

ing  goods  to  have  been  shipped  on  board  a  vessel, 
is  conclusive  proof  of  that  shipment  as  against 
the  master  or  other  person  signing  the  same,  not- 
withstanding that  such  goods  or  some  part  there- 
of may  not  have  been  so  shipped,  unless  such  hold- 
er of  the  bill  of  lading  had  actual  notice  at  the 
time  of  receiving  the  same  that  the  goods  had 
not  been  in  fact  laden  on  board,  provided  that  the 
master  or  other  person  so  signing  may  exonerate 
himself  in  respect  of  such  misrepresentation  by 
showing  that  it  was  caused  without  any  default 
on  his  part,  and  wholly  by  the  fraud  of  the  shipper 
or  of  the  holder,  or  some  person  under  whom  the 
holder  holds,  (b) 

ESTOPPEL  OF   BAILEE. 

Arkansas.  In  an  action  by  a  bailor  against  his  bailee,  it 
is  no  defense  that  the  bailor  purchased  the  property  while 
acting  as  agent  or  attorney  for  a  third  person,  who  may 
have  the  right  to  claim  the  benefit  of  the  purchase. — Estes 
v.  Boothe,  20  Ark.  583. 

California.  To  the  general  rule  that  a  bailee  will  not  be 
allowed  to  set  up  title  in  a  third  party,  in  an  action 
brought  by  the  bailor,  there  is  an  exception  in  cases  where 
the  bailor's  possession  was  obtained  by  fraud. — Hayden 
v.  Davis,  9  Cal.  573. 

A  bailee  cannot  in  an  action  brought  against  him  by 
his  bailor,  set  up  the  title  of  a  third  person  except  by  the 
authority  of  that  person. — Dodge  v.  Meyer,  61  Cal.  405. 

One  who  obtains  possession  of  property  as  bailee  can- 
not assert  ownership  of  the  property  until  the  bailor  has 
notice  of  the  adverse  claim. — In  re  Rathgeb's  Estate,  125 
Cal.  302,  57  P.   1010. 

The  insolvent,  prior  to  the  insolvency  proceedings,  act- 
ing as  the  agent  of  the  owner,  deposited  the  property  In 

(b)    18   &    19    Vict.    c.    Ill,    a.    3. 


768  PRESUMPTIONS  AND  ESTOPPELS. 

controversy  in  a  safety  deposit  vault  with  instructions 
on  the  wrapper  to  deliver  it  only  to  the  depositor  or  the 
owner  whose  name  was  also  on  the  wrapper.  Upon  de- 
mand, the  bailee,  with  knowledge  of  the  insolvency  pro- 
ceedings, delivered  the  property  to  the  owner.  The  as- 
signee of  the  insolvent  brought  suit  against  the  bailee  to 
recover  the  property  or  its  value,  and  it  was  held  that 
he  was  not  entitled  to  recover.— Davis  v.  Donohoe-Kelly 
Banking  Co.,  152  Cal.  282,  92  P.  639. 

Colorado.  A  bailee  can  discharge  his  liability  to  the  bailor 
only  by  returning  the  identical  thing  which  he  has  re- 
ceived, or  its  proceeds,  under  the  terms  of  the  bailment; 
but  to  this  rule  there  are  exceptions.  The  bailee  may 
show  that  the  property  has  been  taken  from  him  by  pro- 
cess of  law,  or  perhaps  excuse  his  default  in  some  other 
way;  but  he  cannot  set  up  jus  tertii  against  his  bailor, 
however  tortious  the  possession  of  the  latter,  unless  the 
true  owner  has  claimed  the  property  and  the  bailee  has 
yielded  to  the  claim. — Jensen  v.  Eagle  Ore  Co.,  47  Colo. 
306,  107  P.  259. 

Kansas.  Generally  a  bailee  cannot  set  up  title  in  a  third 
party,  and,  a  fortiori,  in  himself,  to  preserve  his  own  pos- 
session and  to  prevent  a  return  of  the  property  to  the 
bailor.  He  is  estopped  to  deny  his  bailor's  title,  even  as 
a  tenant  his  landlord's,  although  he  may  show  delivery 
to  the  true  owner. — Thompson  v.  Williams,  30  Kan.  114, 
1  P.  47. 

South  Dakota.  Under  the  common  law  a  bailee  could 
neither  assert  title  in  himself  nor  in  a  third  person  as 
against  the  bailor;  but  the  general  rule  now  is,  that  a 
bailee  can  discharge  his  liability  to  the  bailor  only  by  re- 
turning the  identical  thing  which  he  has  received,  or  its 
proceeds,  under  the  terms  of  the  bailment;  but  the  bailee 
may  show  that  the  property  has  been  taken  from  him  by 
process  of  law,  or  perhaps  excuse  his  default  in  some 
other  way.  The  bailee  cannot  set  up  jus  tertii  against 
his  bailor,  however  tortious  the  possession  of  the  latter, 
unless  the  true  owner  has  claimed  the  property  and  the 
bailee  has  yielded  to  the  claim.  The  purpose  of  the 
statute  requiring  a  name  in  the  receipt,  of  the  person  to 


PRESUMPTIONS  AND  ESTOPPELS.  769 

whose  order  the  property  shall  be  subject,  is  to  have  in- 
serted the  name  of  the  person  who  can  negotiate  the  re- 
ceipt, and  the  bailee  is  estopped  as  to  such  person  from 
questioning  his  ownership;  but  it  does  not  deprive  the 
true  owner  of  his  common  law  right  to  pursue  his  prop- 
erty in  whomsoever's  hands  he  may  find  it.  The  bailee 
cannot  assume,  as  between  the  party  claiming  the  receipt 
and  a  third  party,  to  determine  which  is  the  rightful 
claimant  of  the  property. — Street  v.  Farmers'  Elev.  Co., 
(S.  D.),  146  N.  W.  1077. 

One  B  had  possession  of  property  belonging  to  A  with 
instructions  to  deliver  same  to  a  certain  warehouseman. 
The  warehouseman  was  fully  informed  as  to  the  matter 
and  instructed  by  A  to  deliver  the  warehouse  receipt  for 
the  property  to  him.  B  employed  C  to  make  delivery  of 
the  property  to  the  warehouseman.  C  did  so  and  de- 
manded the  receipt,  which  was  given  him,  and  he  con- 
verted the  proceeds.  In  an  action  by  A  against  the  ware- 
houseman for  damages,  it  was  held,  that  the  latter  would 
be  estopped  to  claim  that  C  was  the  agent  of  A. — Johnson 
v.  Bagley  Elevator  Co.,  36  S.  D.  531,  156  N.  W.  76. 
Texas.  A  bailee,  when  sued  by  the  owner  of  the  property, 
cannot  set  up  right  of  possession  in  a  third  party. — Moore 
v.    Aldrich,   25  Tex.   Sup.   276. 

ESTOPPEL   OF    AGENT. 

Nevada.  Where  the  defendant  has  received  plaintiff's 
property  to  sell  and  account  for  the  proceeds,  in  the  ab- 
sence of  a  showing  that  some  one  having  a  paramount 
title  to  the  property  had  made  a  claim  upon  him  for  it, 
he  will  be  estopped  from  denying  the  plaintiff's  title  to 
the  property— Ah  Tone  v.  McGarry,  22  Nev.  310,  39  P. 
1009. 

Oregon.  The  general  rule  is  that  an  agent  who  receives 
money  for  his  principal  is  estopped  to  deny  title,  and  must 
return  or  account  for  the  money  to  him  for  whom  he  re- 
ceived it.  This  rule  does  not  prevent  an  agent,  when  sued 
by  his  principal,  from  showing  that  he  has  been  divested 
of  the  property  by  a  title  paramount  to  that  of  his  prin- 
cipal, or  that  he  has  paid  over  the  money  or  property  to 


770  PRESUMPTIONS  AND  ESTOPPELS. 

one  holding  such  a  title.  The  rule  is  practically  the  same 
as  that  governing  the  relation  of  bailor  and  bailee,  and 
surrender  to  a  paramount  title  is  a  good  defense.— Moss 
Merc.  Co.  v.  First  Nat.  Bank,  47  Or.  361,  82  P.  8. 

ESTOPPEL  AS  TO   BILL   OF   LADING. 

Arkansas.  Under  the  act  of  March  15,  1887,  a  railroad 
company  which  has  issued  a  bill  of  lading  to  the  owner 
for  property  in  the  hands  of  another,  is  not  estopped  as 
to  third  persons  from  denying  that  the  property  was  in 
its  possession  or  control. — Martin  v.  Railway  Co.,  55  Ark. 
510,  19  S.  W.  314. 

A  bill  of  lading,  as  a  receipt,  is  prima  facie  but  not 
conclusive  evidence  of  the  facts  recited;  and  between  the 
parties  it  is  impeachable  for  mistake,  error,  or  false  state- 
ments in  it.  The  agent  of  a  carrier  has  no  authority  to 
issue  bills  of  lading  when  the  goods  are  not  received;  and 
if  he  does  so  the  receipt  is  not  binding  upon  the  carrier, 
at  least  before  the  rights  of  a  bona  fide  holder  of  a  ne- 
gotiable bill  of  lading  have  intervened. — St.  Louis,  I.  M. 
&  S.  Ry.  Co.  v.  Citizens  Bank,  87  Ark.  26,  112  S.  W.  154. 

Kansas.  Where  the  agent  of  a  carrier  has  issued  a  bill 
of  lading  to  the  consignors,  and  they  have  drawn  on  the 
consignees  with  the  bill  attached,  the  carrier  is  estopped 
from  denying  the  truth  of  the  recitals  therein,  and  be- 
comes '  liable  to  the  consignees  for  such  sums  of  money 
as  they  may  advance  on  the  faith  of  said  bill.  So  held 
where  a  bill  of  lading  was  issued  for  a  carload  which  was 
never  loaded. — St.  Louis  &  S.  R.  Ry.  Co.  v.  Adams,  4  Kan. 
App.  305,  45  P.  920. 

And  where  two  original  bills  were  issued  for  a  single 
consignment  and  both  of  them  negotiated. — Wichita  Sav. 
Bank  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  20  Kan.  519. 

In  an  action  by  an  innocent  purchaser  of  the  goods  rep- 
resented by  a  bill  of  lading  issued  by  a  duly  authorized 
agent  of  a  railroad  for  goods  not  actually  received,  bill  is 
binding  on  the  railroad,  so  far  as  necessary  to  protect  in- 
tervening rights,  and  this  rule  is  not  changed  by  the  fact 
that  the  statute  makes  it  a  criminal  offense  to  issue  such 


PRESUMPTIONS  AND  ESTOPPELS.  771 

bills— Sealy  v.  Missouri,  K.  &  T.  Ry.  Co.,  84  Kan.  479,  114 
P.   1077. 

Where  a  bill  of  lading  is  issued  for  more  freight  than  is 
actually  shipped,  the  party  issuing  the  bill  is  liable  to  a 
transferee  in  the  regular  course  of  business  for  the  short- 
age, and  for  all  damages  which  are  the  natural  and  proxi- 
mate result  of  the  misrepresentations  in  the  bill. — Rail 
Grain  Co.  v.  Missouri  Pacific  Ry.  Co.,  94  Kan.  446,  146  P. 
1180. 

Nebraska.  The  representations  made  in  a  bill  of  lading 
that  the  railroad  company  issuing  it  has  received  the  goods 
for  shipment,  is  a  representation  to  anyone  who,  in  good 
faith  relying  thereon,  sees  fit  to  make  advances  on  the 
same.  If  the  representation  is  false  and  the  railroad  has 
not  actually  received  the  gopds,  as  against  an  innocent 
purchaser  mislead  by  the  representation,  the  carrier  is 
estopped  to  deny  that  it  did  receive  the  goods. — Sioux 
City  &  P.  R.  Co.  v.  First  Nat.  Bank,  10  Neb.  556,  7  N.  W. 
311. 

The  bill  of  lading  and  waybill,  made  by  the  authorized 
agent  of  a  carrier  of  freight,  are  competent  evidence  tend- 
ing to  prove  that  the  articles  therein  described  were  de- 
livered to  such  carrier  for  shipment. — Chicago,  M.  &  St. 
P.  Ry.  Co.  v.  Johnston,  58  Neb.  236,  78  N.  W.  499. 

Texas,  As  to  an  innocent  and  bona  fide  holder  of  a  bill 
of  lading,  the  carrier  will  be  estopped  from  claiming  that 
he  did  not  receive  the  goods. — Wichita  Falls  Comp.  Co. 
v.  Moody  &  Co.,  (Tex.  Civ.  App.),  154  S.  W.  1032. 

Washington.  Where  a  transportation  company  shows  that 
merchandise  was  not  actually  received  by  it,  and  that  a 
bill  of  lading  has  been  issued  by  its  agent,  either  through 
fraud  or  mistake,  it  is  held,  that,  as  the  receipt  of  the  goods 
lies  at  the  foundation  of  the  contract  to  carry  and  deliver, 
there  can  be  no  such  contract,  unless  the  goods  have  ac- 
tually been  received,  and  that  the  agent  of  the  carrier  has 
no  authority  to  issue  a  bill  of  lading  without  the  actual 
receipt  of  the  goods,  even  as  to  an  innocent  transferee  or 
pledgee  of  the  bill  of  lading. — Roy  &  Roy  v.  Northern 
Pac.  Ry.  Co.,  42  Wash.  572,  85  P.  53. 


772  PRESUMPTIONS  AND  ESTOPPELS. 

NOTE    XXXVIII. 
(To  Articles  102-105.) 

These  articles  embody  the  principal  cases  of  estoppels  in 
pais,  as  distinguished  from  estoppels  by  deed  and  by  record. 
As  they  may  be  applied  in  a  great  variety  of  ways  and  to 
infinitely  various  circumstances,  the  application  of  these  rules 
has  involved  a  good  deal  of  detail.  The  rules  themselves 
appear  clearly  enough  on  a  careful  examination  of  the  cases. 
The  latest  and  most  extensive  collection  of  cases  is  to  be 
seen  in  2  S.  L.  C.  851-880,  where  the  cases  referred  to  in 
the  text  and  many  others  are  abstracted.  See,  too,  1  Ph. 
Ev.    350-353;   T.   E.   ss.    88-90,   776,    778;   Best,   s.    543. 

Article  102  contains  the  rule  in  Pickard  v.  Sears,  6  A.  & 
E.  474,  as  interpreted  and  limited  by  Parke,  B.,  in  Freeman 
v.  Cooke,  6  Bing.  174,  179.  The  second  paragraph  of  the 
article  is  founded  on  the  application  of  this  rule  to  the  case 
of  a  negligent  act  causing  fraud.  The  rule,  as  expressed,  is 
collected  from  a  comparison  of  the  following  cases:  Bank 
of  Ireland  v.  Evans,  5  H.  L.  C.  389;  Swan  v.  British  and 
Australasian  Company,  which  was  before  three  courts,  see 
7  C.  B.  n.  s.  448;  7  H.  &  N.  603;  2  H.  &  C.  175,  where1  the 
judgment  of  the  majority  of  the  Court  of  Exchequer  was 
reversed;  and  Halifax  Guardians  v.  Wheelwright,  L.  R.  10 
Ex.  183,  in  which  all  the  cases  are  referred  to.  All  of  these 
refer  to  Young  v.  Grote  (4  Bing.  253),  and  its  authority  has 
always  been  upheld,  though  not  always  on  the  same  ground. 
The  rules  on  this  subject  are  stated  in  general  terms  in  Carr 
V.    L.    &    N.    W.    Railway,    L.    R.    10    C.    P.    316-317. 

It  would  be  difficult  to  find  a  better  illustration  of  the 
gradual  way  in  which  the  judges  construct  rules  of  evidence, 
as  circumstances  require  it,  than  is  afforded  by  a  study  of 
these    cases. 


COMPETENCY  OF  WITNESSES.  773 

CHAPTER  XV. 

OF  THE  COMPETENCY  OF  WITNESSES.* 
Article  106. 

WHO   MAY   TESTIFY,    (a) 

All  persons  are  competent  to  testify  in  all  cases 
except  as  hereinafter  excepted,  (b) 

SURVIVOR'S  TESTIMONY. 
Where  a  statute  provides  that  no  party  to  a  civil  action, 
suit  or  proceeding,  or  person  directly  interested  in  the 
event  thereof,  shall  be  allowed  to  testify  therein  of  his 
own  motion,  or  in  his  own  behalf,  when  any  adverse  party 
sues  or  defends  as  executor,  unless  when  called  as  a  wit- 
ness by  such  adverse  party,  the  calling  of  such  witness 
by  the  adverse  party  makes  him  competent  for  all  pur- 
poses.—Jerome  v.  Bohm,  21  Colo.  322,  40  P.  570;  Higbee 
v.  McMillan,  18  Kan.  133. 

California.  The  section  of  the  Code  of  Civil  Procedure 
which  prohibits  parties  in  whose  favor  an  action  is  prose- 
cuted against  an  estate  from  being  witnesses,  does  not 
prohibit  a  person  against  whom  an  action  is  prosecuted 
by  an  executor  on  a  claim  in  favor  of  an  estate  from  being 
a  witness  in  his  own  favor. — Sedgwick  v.  Sedgwick,  52 
Cal.   336. 

a  fit  was  the  old  common  law  rule  that  parties  of  record, 
whether  nominal  or  not,  and  others  interested  in  the  event, 
were  disqualified  from  testifying;  Pogue  v.  Joyner,  6  Ark. 
241,  42  Am.  Dec.  693.  But  this  rule  has  almost  universally 
been  abolished  by  statute.     1  Wigmore  Ev.,  §  577] 

b  [In  practically  all  of  the  states  statutes  have  been  en- 
acted providing  that  no  party  or  person  directly  interested  in 
the  event  of  the  action  shull  he  allowed  to  testify  when  any 
adverse  party  sues  or  defends  as  the  representative  of  a 
lunatic  or  deceased,  except  in  certain  cases.  See  1  Wigmore 
Ev.,   5    488.] 

•See   Note  at  end  of  chapter. 


774  COMPETENCY  OF  WITNESSES. 

Colorado.  Mills'  Ann.  Stats.,  sec.  4822,  provides  that  all 
persons,  with  certain  exceptions,  may  be  witnesses,  and 
that  neither  parties  nor  other  persons  who  have  an  in- 
terest in  the  event  of  an  action  or  proceeding  shall  be 
excluded;  and  sec.  4816  provides  that  no  party  to  any  civil 
action,  or  person  directly  interested  in  the  event  thereof, 
shall  be  allowed  to  testify  therein  when  any  adverse  party 
sues  or  defends  as  the  administrator  of  any  deceased  per- 
son. Held,  that  in  a  proceeding  upon  the  allowance 
of  a  claim  against  the  estate  of  a  decedent,  the  wife  of  the 
claimant  is  a  competent  witness  to  testify  in  favor  of  her 
husband.— Butler  v.  Phillips,  38  Colo.  378,  88  P.  480;  White 
v.  Christopherson,  46  Colo.  46.  102  P.  747. 
Kansas.  An  administratrix  of  the  estate  of  a  deceased 
partner  petitioned  the  court  for  directions  whether  to 
treat  her  decedent's  real  estate  as  individual  or  partner- 
ship property,  making  various  creditors  and  persons 
parties,  including  the  brother  and  surviving  partner  of  the 
deceased.  She  called  as  a  witness  in  her  behalf  this 
brother,  who  testified  to  transactions  and  communications 
had  personally  by  him  with  the  deceased,  over  the  objec- 
tion of  the  appealing  creditor.  Held,  that,  even  if  he  were 
deemed  to  be  testifying  in  his  own  behalf  on  account  of 
his  interest  in  the  matter,  still,  as  neither  he  nor  the 
creditor  is  within  the  terms  of  the  statute,  the  latter  could 
no  exclude  the  evidence. — Sarbach  v.  Sarbach,  86  Kan. 
894,   122  P.  1052. 


Article  107. 
what  witnesses  are  incompetent. 

A  witness  is  incompetent  if  in  the  opinion  of  the 
judge  he  is  prevented  by  extreme  youth,  disease 
affecting  his  mind,  or  any  other  cause  of  the 
same  kind,  from  recollecting  the  matter  on  which 
he  is  to  testify,  from  understanding  the  questions 
put  to  him,  from  giving  rational  answers  to  those 


COMPETENCY  OF  WITNESSES.  775 

questions,  or  from  knowing  that  he  ought  to  speak 
the  truth,  (a) 

A  witness  unable  to  speak  or  hear  is  not  in- 
competent, but  may  give  his  evidence  by  writing 
or  by  signs,  or  in  any  other  manner  in  which  he 
can  make  it  intelligible;  but  such  writing  must 
be  written  and  such  signs  made  in  open  Court. 
Evidence  so  given  is  deemed  to  be  oral  evidence. 


Illustrations.     ■ 

a  [On  trial  for  rape  of  a  negro  girl  8  years  of  age,  the  de- 
fense objected  to  the  prosecutrix's  being  put  on  as  a  witness, 
on  the  ground  of  incompetency.  On  examination  by  the  court 
she  testified  that  she  goes  to  school,  knows  her  A,  B,  C's, 
and  can  read  and  write;  that  she  knows  she  had  sworn  to  tell 
the   truth   and  she   would  be   put   in   jail   if  she  did   not  do  so. 

She  was  held  to  be  a  competent  witness.  ]i 

b  [Objection  was  made  in  a  rape  case  that  the  prosecuting 
witness,  being  only  six  years  old,  was  incompetent  to  testify. 
On  examination  by  the  court  she  stated  that  she  had  gone 
to  school  and  knew  her  A,  B,  C's;  she  told  the  name  of  her 
teacher,  the  names  of  her  brother  and  other  relatives,  and 
the  school  her  brother  attended;  that  her  mother  was  dead, 
but  that  her  father  was  living,  and  gave  his  name;  that  she 
was  hot  living  now  with  her  father,  but  with  her  auntie,  giv- 
ing her  name;  told  how  many  children  her  auntie  had;  that 
she  lived  there  and  that  they  were  good  to  her;  that  she  went 
to  Sunday-school  out  at  her  auntie's  church;  that  she  heard 
about  God,  and  that  He  was  up  in  Heaven;  that  she  knew 
about  the  devij — that  he  was  a  bad  man;  that  she  knew  what 
it  was  to  tell  stories;  that  she  knew  what  it  meant  to  hold 
up  her  hand  and  swear  that  she  would  tell  the  truth;  and 
that  if  she  did  not  tell  the  truth  she  would  go  to  the  bad  man 
and    the   penitentiary. 

The  judge  committed  no  error  in  permitting  her  to  testify. ]2 

c  I  In  a  prosecution  for  murder,  a  Chinese  witness  on  being 
nined  as  to  his  competency,  said  that  he  did  not  under- 
stand what  God  was.  hut  was  a  Chinaman  and  believed  in  the 


(a)  [Numerous  statutes,  in  all  jurisdictions,  have  been 
enacted  relating  to  the  competency  of  witnesses.  See  1  Wig- 
more    Bv.,    5    488.] 

'[Douglass   v.   State,  73   Tex.   t'r.   R.   385,   165   S.  W.   933.] 
'[Smith    v.    State.    (Tex.   Cr.    R.),    164    S.   W.   838.] 


776  COMPETENCY  OF  WITNESSES. 

Chinese  religion;  that  he  had  never  been  a  witness  before, 
and  did  not  know  anything  about  the  obligations  of  an  oath 
under  the  Christian  religion,  though  he  knew  that  it  was  his 
duty  to  tell  the  truth  in  the  case.  He  was  thereupon  sworn 
and   testified. 

An   objection   to   his   competency   was   properly   overruled.] 3 

d  [On  a  prosecution  for  murder  an  Indian  witness  was  ex- 
amined preliminarily  through  an  interpreter,  and  when  asked 
whether  he  understood  if  "he  told  a  lie  in  the  case  God  or  the 
Great  Spirit  would  be  displeased  with  him,  answered  that  he 
would  tell  the  truth  and  did  not  want  to  tell  any  lies;  when 
asked  what  would  be  the  consequences  if  he  should  swear 
to  a  falsehood,  replied  that  he  did  not  know  anything;  that 
he  did  not  know  that  it  was  wrong  to  swear  to  a  lie,  and 
that  he  wanted  to  tell  his  evidence — that  was  all  he  was  wait- 
ing for. 

The  witness  was  held  incompetent  as  not  having  capacity  to 
understand  the  nature  of  an  oath.] 4 

e  [In  a  prosecution  for  rape,  objection  was  made  to  the  com- 
petency of  the  prosecutrix,  on  the  ground  that  she,  being 
just  over  thirteen  years  of  age,  did  not  understand  the  nature 
and  obligation  of  an  oath. 

Upon  examination,  she  stated  that  she  knew  it  was  wrong 
to  tell  a  lie,  and  that  she  would  be  punished  if  she  swore  a 
lie,  but  did  not  know  whether  she  would  be  put  in  jail  or  the 
penitentiary;  that  people  who  told  lies  would  go  to  hell,  al- 
though some  of  them  might  go  to  heaven.  The  oath  was  ex- 
plained to  her,  and  she  apparently  had  sufficient  intelligence 
to   understand    its    obligations. 

The  testimony  of  this  witness  was  held  to  have  been  prop- 
erly received.  ]r> 

INCOMPETENCY  IN  GENERAL. 
Kansas.  Statutes  relating  to  the  exclusion  of  witnesses 
from  testifying  must  be  strictly  construed,  and  the  ex- 
clusion will  not  be  extended  by  implication  to  a  class  not 
named.  (Wife  of  deceased,  superseded  as  beneficiary  by 
two  of  his  children,  may,  in  a  suit  brought  by  her,  testify 
as  to  conversations  by  him  with  her  children  made  in  her 
presence.) — Savage  v.  Modern  Woodmen  of  America,  84 
Kan.  63,  113  P.  802. 


3[Territory  v.  Yee  Shun,  3  N.  M.  82,  2  P.  84.] 
4[Priest  v.  State,  10  Neb.  393,  6  N.  W.  468.] 
'[Carter  v.  State,   (Tex.  Cr.  R.),  181   S.  W.   473. ] 


COMPETENCY  OF  WITNESSES.  777 

Oklahoma.  In  order  to  make  available  the  incompetency 
of  a  witness,  objection  must  be  to  witness's  incompetency, 
and  not  merely  to  the  competency,  relevancy  or  materiality 
of  the  testimony  offered  by  the  witness. — Muskogee  Elec. 
Trac.  Co.  v.  Mclntire.  37-Okl.  684,  133  P.  213. 
Texas.  The  fact  that  a  witness  is  confined  in  jail  on  a 
charge  of  murder  does  not  render  him  incompetent  to 
testify,  where  it  appears  that  he  had  never  had  a  trial  nor 
ever  been  convicted  of  that  offense. — Moore  v.  State,  (Tex. 
Cr.  R.),  180  S.  W.  677. 

AGE  OF  WITNESS. 
There  is  not  any  precise  age  within  which  children  are 
excluded  from  giving  testimony.  Their  competency  is  to 
be  determined  not  by  their  age  but  by  the  degree  of  their 
understanding  and  knowledge,  and  comprehension  of  the 
nature  and  effect  of  an  oath. — Flanagin  v.  State,  25  Ark. 
92;  Warner  v.  State,  25  Ark.  447;  People  v.  Bernal,  10 
Cal.  67   (child  of  8  years  admitted). 

Arizona.  A  child  almost  seven  years  old  who  did  not 
reveal  in  his  examination  very  much  knowledge  of  the 
nature  of  an  oath  or  the  consequences  of  falsehood,  except 
that  he  answered  that  people  who  told  lies  would  go  to 
jail,  is  incompetent. — Donnelley  v.  Territory,  5  Ariz.  291, 
52  P.   368. 

Arkansas.  If  a  child  appears  to  have  sufficient  natural 
intelligence  to  perceive  the  nature  and  effect  of  an  oath, 
he  is  a  competent  witness  regardless  of  age. — Crosby  v. 
State,  93  Ark.  156,  124  S.  W.  781. 

In  criminal  cases,  the  common  law  rule  in  relation  to 
witnesses  has  not  been  changed  by  the  code,  and  there 
is  no  presumption  as  to  the  capacity  of  a  child  under  four- 
teen years  of  age,  to  testify. — Crosby  v.  State,  93  Ark.  156, 
124  S.  W.  781. 

Where  the  testimony  of  a  boy  nineteen  years  of  age 
shows  that  he  had  sufficient  understanding  to  apprehend 
the  nature  and  effect  of  an  oath,  he  should  be  allowed  to 
testify.— Wakin  v.  Wakin,  119  Ark.  509,  180  S.  W.  471. 

A  witness  of  nineteen  years  of  age  must  be  presumed 
to  have  common   discretion  and   understanding   until   the 


778  COMPETENCY  OF  WITNESSES. 

contrary  appears. — Wakin  v.  Wakin,  119  Ark.  509,  180 
S.  W.  471. 

California.  Competency  of  a  youthful  witness  is  to  be  de- 
termined, not  by  age,  but  by  degree  of  understanding  and 
knowledge.— People  v.  Swist.  136  Cal.  520,  69  P.  223. 

Sec.  1880,  Code  Civ.  Proc,  refers  only  to  children  under 
ten  years  of  age  "who  appear  incapable  of  receiving  just 
impressions  of  the  facts  respecting  which  they  are  exam- 
ined or  of  relating  them  truly." — People  v.  Wilmot,  139 
Cal.  103,  72  P.  838. 

A  witness  fifteen  years  of  age  is  presumably  a  com- 
petent witness. — People  v.  Harrison,  18  Cal.  App.  288,  123 
P.  200. 

Nebraska.  A  child  possessing  sufficient  capacity  to  under- 
stand the  nature  and  obligation  of  an  oath  is  a  competent 
witness.  (Children  of  9  and  11  years  admitted.) — Davis 
v.  State.  31  Neb.  247,  47  N.  W.  854. 

In  this  state,  no  age  is  fixed  by  statute  below  which  a 
child  is  presumed  to  be  incompetent  to  testify,  and  there 
is  no  rule  of  law  outside  of  statute  that  a  child  of  six 
is  incompetent  to  testify. — Evers  v.  State,  84  Neb.  708, 
121   N.   W.    1005. 

New  Mexico.  Permitting  a  child  of  ten  years  of  age  to 
testify,  is  within  the  discretion  of  the  trial  court.  At 
fourteen  years  and  over  there  is  a  presumption  of  suffi- 
cient discretion  and  understanding;  under  that  age  no 
such  presumption  exists. — Territory  v.  De  Gutman,  8  N. 
M.  92.  42  P.  68. 

Oklahoma.  There  is  no  precise  age  fixed  at  which  chil- 
dren are  excluded  from  giving  evidence.  Under  the  stat- 
ute, intelligence  and  not  age  is  the  proper  test  by  which 
the  competency  of  a  child  as  a  witness  must  be  determined, 
and  where  it  appears  that  a  child  witness  had  sufficient 
intelligence  to  receive  just  impressions  of  the  facts  re- 
specting which  she  is  to  testify,  and  the  capacity  to  relate 
them  truly,  and  has  received  sufficient  instruction  to  ap- 
preciate the  difference  between  right  and  wrong,  and  a 
proper  consciousness  of  the  punishment  of  false  swearing, 
an  objection  on  the  ground  of  incapacity  was  properly 
overruled.— Walker  v.  State,   (Okl.  Cr.),  153  P.  209. 


COMPETENCY  OF  WITNESSES.  779 

Where  an  objection  is  made  to  a  witness,  on  the  ground 
of  incompetency  by  reason  of  nonage,  the  competency  of 
the  witness  is  a  mixed  question  of  law  and  fact,  to  be 
determined  by  the  trial  court  upon  an  examination  of  the 
witness,  and  only  a  manifest  abuse  of  judicial  discretion 
in  deciding  that  a  child  is  competent  to  testify,  will  war- 
rant interference  with  such  decision. — Walker  v.  State, 
(Okl.  Cr.),  153  P.  209. 

South  Dakota.  Whether  a  boy  eleven  years  of  age  has 
such  ability  to  discriminate  between  right  and  wrong,  and 
such  understanding  of  his  duty  and  obligation  as  a  wit- 
ness to  tell  only  what  is  true,  as  to  make  him  a  competent 
witness,  is  left  in  the  first  instance  to  the  discretionary 
judgment  of  the  trial  court,  after  informing  itself  by 
proper  examination. — State  v.  Reddington,  7  S.  D.  368,  64 
S.  W.  170. 

Texas.  A  child  of  ten  who  said  that  she  did  not  know 
what  God  and  the  laws  of  the  country  would  do  to  her 
if  she  swore  falsely,  but  that  she  would  tell  the  truth, 
admitted.— Davidson  v.  State,  39  Tex.  130. 

A  child  nine  years  old,  not  showing  any  knowledge 
of  the  nature  of  an  oath,  excluded. — Williams  v.  State,  12 
Tex.  App.  127. 

A  child  four  years  old  and  utterly  incapable  of  realiz- 
ing the  meaning  of  an  oath  is  not  a  competent  witness. 
—Mays  v.  State,  58  Tex.  Cr.  R.  651,  127  S.  W.  546. 
Utah.  A  child  with  the  mental  capacity  to  understand 
the  obligations  of  an  oath,  that  is,  who  appreciates  the  dif- 
ference between  truth  and  falsehood,  that  it  is  his  duty  to 
tell  the  truth,  and  is  capable  of  receiving  just  impressions 
of  the  facts  concerning  which  he  is  to  testify  and  has 
ability  to  relate  them,  is  a  competent  witness. — State  v. 
Morasco,   42   Ttah   5,   128  P.   571. 

DISEASE   OF    MIND. 

California.  The  discharge  of  a  witness  from  an  asylum 
is  prima  facie  evidence  of  her  restoration  to  reason  and 
Of  being  of  sound  mind;  and  her  competency  to  testify 
as  a  witness  is  for  the  court  to  determine. — Clements  v. 
McGinn.   (Cal.),  33  P.  920. 


780  COMPETENCY  OF  WITNESSES. 

The  degree  or  kind  of  imbecility  of  a  witness  might  be 
such  as  to  render  him  wholly  unfit  to  testify  upon  one 
subject,  at  the  same  time  he  might  be  fully  competent 
to  testify  on  another. — People  v.  Harrison,  18  Cal.  App. 
288,   123  P.   200. 

In  order  to  prove  a  girl  fifteen  years  of  age  incompetent 
to  testify  upon  the  ground  of  unsoundness  of  mind,  it 
devolves  upon  the  objecting  party  to  prove  such  person 
wanting  in  sufficient  intelligence  to  observe,  recollect  and 
communicate  the  occurrences  concerning  which  she  is  to 
testify. — People  v.  Harrison,  18  Cal.  App.  288,  123  P.  200. 
Idaho.  Incapacity  to  give  intelligent  and  legal  consent  to 
the  commission  of  an  act  does  not  necessarily  imply  in- 
capacity to  thereafter  correctly  and  truthfully  narrate  the 
facts  constituting  the  commission  of  the  act. — State  v. 
Simes,  12  Ida.  310,  85  P.  914. 

Texas.  A  person  who  has  been  rendered  stupid  by  drugs 
so  as  to  render  him  incapable  of  remembering  that  he  had 
been  robbed,  is  not  incompetent  as  an  insane  witness 
under  Art.  768  Code  Cr.  Prac— Pones  v.  State,  43  Tex. 
Cr.  R.  201,  63  S.  W.  1021. 

A  charge  defining  insanity  and  the  degree  of  insanity 
required  to  render  a  person  incompetent  as  a  witness,  ap- 
proved.— Batterton  v.  State,  52  Tex.  Cr.  R.  381,  107  S.  W. 
826. 

A  witness  once  insane,  but  proven  to  have  fully  recov- 
ered his  sanity,  is  a  competent  witness. — Singleton  v. 
State,  57  Tex.  Cr.  R.  560,  124  S.  W.  92. 

A  witness  once  insane  but  not  shown  to  have  recovered, 
should,  if  timely  request  is  made,  be  examined  into  his 
mental  state  and  condition,  before  being  permitted  to. 
testify.— Mills  v.  Cook,   (Tex.  Civ.  App.),  57  S.  W.  81. 

Intoxication  on  the  part  of  a  witness  does  not  disqualify 
him  as  a  competent  witness,  but  goes  to  his  credibility. 
—Myers  v.  State,  37  Tex.  Cr.  R.  208,  39  S.  W.  111. 
Washington.  A  witness  who  uses  opium  is  not  thereby 
rendered  incompetent  as  a  witness,  but  the  testimony  of 
such  witness  is  very  unreliable,  and  juries  should  be  care- 
fully cautioned  as  to  the  credence  to  be  given  him. — State 
v.  White,  10  Wash.  611,  39  P.   160. 


COMPETENCY  OF  WITNESSES.  781 

DEAF  AND   DUMB. 

Colorado.  That  difficulty  attends  the  examination  of  a 
deaf-mute  is  no  reason  for  excluding  his  testimony;  and 
he  may  be  examined  by  means  of  written  questions  and 
answers.— Ritchey  v.  People,  23  Colo.  314,  47  P.  272. 
New  Mexico.  A  deaf  and  dumb  child  nine  years  of  age 
was  held  incompetent  to  testify  in  a  capital  case  who  had 
never  been  educated  in  the  deaf  and  dumb  language  and 
who  could  not  be  made  to  understand  the  nature  of  an 
oath.— Territory  v.  Duran,  3  N.  M.  189,  3  P.  53. 
Texas.  A  deaf  witness,  shown  to  understand  the  nature 
of  an  oath,  is  competent.— Kirk  v.  State,  (Tex.  Cr.  R.),  37 
S.  W.  440. 

RELIGIOUS   BELIEF. 

Kansas.  A  witness  is  not  rendered  incompetent  to  testify 
by  reason  of  his  disbelief  in  the  existence  of  God. — Dick- 
inson v.  Beal.  10  Kan.  App.  233,  62  P.  724. 
New  Mexico.  A  Chinaman  who  swears  that  he  is  a 
Christian,  and  testifies  that  he  is  sworn  in  such  a  manner 
that  he  is  to  tell  the  truth,  is  competent. — Territory  v. 
Yee  Shun,  3  N.  M.  100,  2  P.  84. 

OBLIGATION    OF   OATH. 

Before  being  permitted  to  testify,  an  infant  should  be 
required  to  show  that  he  knows  of  the  danger  and  wicked- 
ness of  false  swearing,  or  comprehends  the  obligations 
of  an  oath.— Chapman  v.  State,  (Tex.  Cr-.  R.),  42  S.  \Y. 
559;  Crosby  v.  State,  93  Ark.  156,  124  S.  W.  781. 

California.  Where  a  witness  being  sworn  stated  that  he 
was  fourteen  years  old  and  a  Chileno.  and  did  not  know 
"the  obligation  of  an  oath."  whereupon  the  judge  explained 
to  him  the  nature  of  such  obligation,  and  he  was  then 
permitted  to  testily,  the  other  party  objecting  that  he 
did  not  know  the  nature  of  an  oath,  the  witness  was  held 
competent. — Fuller  v.    Fuller.    17    Cal.    605. 

Kansas.  One  entirely  ignorant  of  the  nature  of  an  oath, 
is  an  incompetent  witness. — Lee  v.  Missouri  Pac.  Ry.  Co., 
67  Kan.  402,  73  P.  110. 


782  COMPETENCY  OF  WITNESSES. 

Montana.  A  witness  who  answered  that  he  knew  the  dif- 
ference between  truth  and  falsehood,  and  the  difference 
between  telling  the  truth  and  telling  a  lie,  and  that  he 
was  there  to  tell  the  truth,  held  competent  as  a  witness. 
—State  v.  Cadotte,  17  Mont.  315,  42  P.  857. 

A  Chinaman  who  testified  that  he  was  a  Christian,  and 
believed  in  the  Christian's  Supreme  Being,  but  did  not 
know  the  nature  of  an  oath,  and  said  that  he  could  tell 
what  he  knew  and  what  he  would  say  would  be  true,  is 
competent  as  a  witness  under  Sec.  3161  of  the  Code  of 
Civil  Procedure  which  provides  that  all  persons,  without 
exception,  otherwise  than  as  specified  in  the  next  two  sec- 
tions, who,  having  organs  of  sense,  can  perceive,  and  per- 
ceiving, can  make  known  their  perceptions  to  others,  may 
be  witnesses. — State  v.  Lu  Sing,  34  Mont.  31,  85  P.  521. 
Nebraska.  An  Indian  witness  who  states  that  he  is  going 
to  tell  the  truth  and  not  tell  any  lies,  but  in  answer  to  re- 
peated questions  did  not  seem  to  be  able  to  tell  what  the 
consequences  would  be  if  he  should  swear  falsely,  and 
could  not  comprehend  the  nature  of  an  oath,  was  held 
incompetent  to  testify. — Priest  v.  State,  10  Neb.  393,  6 
N.   W.    468. 

Texas.  A  child  of  tender  years  who  knows  the  nature  and 
obligation  of  an  oath,  is  competent  to  testify,  her  age 
being  immaterial. — Chapman  v.  State,  (Tex.  Cr.  R.),  42 
S.  W.  559. 

A  child,  in  order  to  be  competent  as  a  witness,  must 
manifest  sufficient  intelligence  to  convince  the  court  that 
the  nature  of  the  obligation  administered  was  understood. 
—Moore  v.  State,  49  Tex.  Cr.  R.  449,  96  S.  W.  327. 

A  child  seven  years  of  age  who  testified  that  she  did 
not  know  the  nature  of  an  oath  or  what  it  meant  to  be 
sworn,  but  did  know  that  she  would  be  punished  if  she 
told  an  untruth,  qualified  as  a  competent  witness. — Mun- 
ger  v.  State,  57  Tex.  Cr.  R.  384,  122  S.  W.  874. 

DISCRETION   OF  COURT. 
Arkansas.     It  is  within  the  discretion  of  the  trial  court, 
subject  to  review  for  clear  abuse  or   manifest  error,   to 
determine  the  competency  of  an  infant   witness. — Crosby 
».  State,  93  Ark.  156,  124  S.  W.  781. 


COMPETENCY  OF  WITNESSES.  78b 

California.  A  ruling  of  a  court  under  subdivision  1,  sec. 
1880.  Code  Civ.  Proa,  upon  the  competency  of  a  witness, 
is  subject  to  review  upon  appeal. — People  v.  Harrison,  18 
Cal.  App.  288,  123  P.  200. 

It  is  peculiarly  within  the  sound  discretion  of  the  trial 
court  to  determine  the  competency  of  a  child  to  testify 
as  a  witness.— People  v.  Baldwin.  117  Cal.  244,  49  P.  186; 
People  v.  Daily,  135  Cal.  104,  67  P.  16;  People  v.  Harrison, 
18  Cal.  App.  288.  123  P.  200. 

Oklahoma.  It  is  within  the  discretion  of  the  trial  court  to 
determine  whether  a  person  is  of  sufficient  intelligence  to 
understand  the  nature  of  an  oath. — City  of  Guthrie  v.  Shaf- 
fer. 7  Okl.  459,  54  P.  698. 

Texas.  It  is  within  the  sound  discretion  of  the  trial  court 
to  determine  the  competency  of  an  infant  witness;  and  the 
court's  action  will  not  be  reviewed  unless  abuse  of  such 
discretion  is  shown. — Hawkins  v  State,  27  Tex.  App. 
273,  11  S.  W.  409;  Streight  v.  State,  62  Tex.  Cr.  R.  453, 
138  S.  W.  742. 

Whether  a  witness  is  mentally  incompetent,  is  left 
largely  to  the  discretion  of  the  trial  court. — Mills  v.  Cook, 
(Tex.  Civ.  App.).   57   S.  W.   81. 

Utah.  Under  Sec.  3413.  Rev.  St.  1898,  it  is  within  the 
sound  discretion  of  the  trial  court  to  decide  whether  a 
witness  is  competent. — State  v.  Blythe,  20  Utah  378,  58 
P.   1108. 

Washington.  It  is  within  the  sound  discretion  of  the  trial 
court  to  determine  whether  a  child  twelve  years  of  age 
la  competent  to  testify  as  a  witness. — State  v.  Bailey,  31 
Wash.  89.  71  P.  715;  Kalberg  v.  The  Bon  Marche,  64  Wash. 
452,   117   P.  227. 

NOTE    XL. 

(To    Article    107.) 

The  authorities  for  the  first  paragraph  are  given  at  great 
length  in  Best,  ss.  146-166.  See.  too.  T.  K.  s.  11!  10;  [4  Wig- 
more  Ev.,  §  4!>2  et  seq.].  As  to  paragraph  2,  see  Best,  s. 
148;  1  Ph.  Ev.  7;  2  Ph.  Ev.  457;  T.  B.  s.  Till.  The  con- 
cluding words  of  the  last  paragraph  are  framed  with  ref- 
erence to  the  alteration   in   the  law  as  to   the   competency  of 


784  COMPETENCY  OF  WITNESSES. 

witnesses  made  by  32  &  33  Vict.  c.  68,  s.  4.  The  practice 
of  insisting-  on  a  child's  belief  in  punishment  in  a  future 
state  for  lying  as  a  condition  of  the  admissibility  of  its 
evidence  leads  to  anecdotes  and  to  scenes  little  calculated 
to  increase  respect  either  for  religion  or  for  the  adminis- 
tration of  justice.  The  statute  referred  to  would  seem  to 
render  this  unnecessary.  If  a  person  who  deliberately  and 
advisedly  rejects  all  belief  in  God  and  a  future  state  is  a 
competent  witness,  a  fortiori,  a  child  who  has  received  no 
instructions   on    the    subject   must   be   competent   also. 

Article  108.* 

( 'o.mpetkncy  in  criminal  (.asks. 

In  criminal  cases  the  accused  person  and  his  or 
her  wife  or  husband,  and  every  person  and  the 
wife  or  husband  of  every  person  jointly  indicted 
with  him  is  incompetent  to  testify,  (a) 

Provided  that  in  any  criminal  proceeding 
against  a  husband  or  wife  for  any  bodily  injury 
or  violence  inflicted  upon  his  or  her  wife  or  hus- 
band, such  wife  or  husband  is  competent  and 
compellable  to  testify,  (b) 

The  following  proceedings  at  law  are  not  crim- 
inal within  the  meaning  of  this  article — 

Trials  of  indictments  for  the  non-repair  of 
public  highways  or  bridges,  or  for  nuisances  to 
any  public  highway,  river,  or  bridge;   (c) 

Proceedings  instituted  for  the  purpose  of  try- 
ing civil  rights  only;(c) 

Proceedings  on  the  Revenue  side  of  the  Ex- 
chequer Division  of  the  High  Court  of  Justice,  (d) 

(a)  Ft.  v.  Payne,  L.  R.  1  C.  C.  R.  349,  and  R.  v.  Thomp- 
son,   id.    377. 

(b)  Reeve  v.  Wood,  5  B.  &  S.  364.  Treason  has  been  also 
supposed    to   form   an   exemption.      See   T.    E.    s.    1237. 

(c)  40    &    41    Vict.    c.    14. 

(d)  28   &   29   Vict.    c.    104,   s.    34. 


COMPETENCY  OF  WITNESSES.  785 

HUSBAND    OR    WIFE    IN    CRIMINAL    CASES. 

In  General. 

Colorado.  One  who  is  sued  for  enticing  away  the  plain- 
tiff's wife,  is  entitled  to  an  instruction  that  she  could  not 
be  called  as  a  witness  without  her  husband's  consent,  and 
that  nothing  unfavorable  was  to  be  inferred  against  the 
defendant  from  her  failure  to  testify. — French  v.  Deane, 
19  Colo.  504,  36  P.  609. 

Kansas.  Crim.  Code.  Sec.  215,  provides  that  no  person 
shall  be  rendered  incompetent  to  testify  by  reason  of  be- 
ing the  husband  or  wife  of  the  accused. — State  v.  Marsee, 
93  Kan.  600,  144  P.  833. 

South  Dakota.  At  common  law,  neither  husband  nor  wife 
was  competent  witness  in  a  criminal  action  against  the 
other,  except  in  cases  of  personal  violence  of  one  against 
the  other.— State  v.  Burt.  17  S.  D.  7,  94  N.  W.  409. 
Texas.  In  an  action  charging  forgery  against  the  hus- 
band, it  was  error  to  compel  defendant's  wife  under  threats 
of  incarceration  to  produce  a  writing  in  her  possession, 
contrary  to  Code  Crim.  Proc,  articles  775,  774  and  773. — 
Downing  v.  State,  61  Tex.  Cr.  R.   519,   136  S.  W.   471. 

It  was  not  error  to  exclude  impeaching  testimony  of  a 
wife,  that  the  husband  was  guilty  of  another  and  different 
offense  including  moral  turpitude. — Pinckard  v.  State,  62 
Tex.  Cr.  R.  602,  138  S.  W.  601. 

Evidence  of  the  wife  cannot  be  used  against  the  hus- 
band, except  in  cases  where  the  offense  is  personal  vio- 
lence by  the  husband  on  the  wife. — Johnson  v.  State,  (Tex. 
Cr.   R.),   148  S.  W.  328. 

Where,  in  an  action  for  perjury  committed  in  a  suit 
for  divorce  brought  by  defendant  in  which  he  charged  im- 
potence in  the  wife,  it  was  not  error  to  admit  the  testi- 
mony of  a  doctor,  who  had  examined  the  wife  as  to  her 
physical  condition,  nor  for  the  wife  to  submit  her  person 
to  examination,  though  she,  herself,  was  incompetent  to 
testify. —Edwards  v.   State,    (Tex.   Cr.   R.),   160   S.  W.   709. 

The  law.  that  a  wife  cannot  testify  against  her  husband 
in  criminal  cases,  cannot  be  waived  by  the  husband. — ■ 
Eads  v.  State,  (Tex.  Cr.  R.),  170  S.  W.  145. 


786  COMPETENCY  OF  WITNESSES. 

In  a  criminal  case,  the  acts  and  declarations  of  the  wife 
which  are  res  gestae  of  the  transaction,  if  she  is  an  aider 
and  abettor  of  her  husband  in  the  commission  of  the  of- 
fense, are  admissible  against  him. — Thompson  v.  State 
(Tex.  Cr.  R.),  178  S.  W.  1192;  Cook  v.  State,  22  Tex.  App. 
511,   3   S.  W.   749. 

Existence  of  Legal  Marriage. 
Nevada.  A  witness  in  a  murder  case  whose  testimony 
was  objected  to  because  she  was  the  common  law  wife 
of  defendant,  was  not  incompetent,  she  being  at  the  time 
the  wife  of  another  man. — State  v.  Hancock,  28  Nev.  300, 
82  P.   95. 

Oregon.  In  a  murder  case,  where  the  state  called  as  a 
witness  a  former  wife  of  defendant,  who  was  permitted 
to  testify  over  his  objection  to  the  effect  that  the  divorce 
action  she  had  commenced  had  not  been  settled  at  the 
time  of  the  murder,  it  appearing  that  defendant  had  made 
neither  appearance  nor  answer  or  otherwise  pleaded,  but 
had  perfected  an  appeal  to  the  supreme  court,  and  it  was 
there  held  that  no  appeal  could  be  perfected  from  a  judg- 
ment or  decree  given  on  confession  or  for  want  of  answer, 
the  former  wife  was  a  competent  witness  as  to  acts  com- 
mitted after  the  decree  had  been  entered. — State  v.  Leasia, 
45  Or.  410,  78  P.  328. 

In  a  case  where  defendant  was  indicted  for  forgery,  the 
wife  of  defendant,  who  was  not  such  at  the  time  of  the 
(rial,  was  a  competent  witness  as  to  any  matter  within 
her  knowledge  except  communications  had  between  them 
during  marriage. — State  v.  Luper,  (Or.),  95  P.  811. 
Texas.  A  witness  who  has  not  been  legally  married  to 
defendant  is  a  competent  witness  against  him. — Crow  v. 
State,  (Tex.  Cr.  R.),  72  S.  W.  392. 

Effect  of  Marriage  After  Offense. 
Arkansas.  Under  Acts  1913,  p.  408,  making  it  an  offense 
to  bring  a  woman  into  the  state  for  immoral  purposes,  the 
injured  female  is  a  competent  witness  against  the  accused, 
notwithstanding  the  fact  that  she  may  have  married  the 
accused  either  before  or  after  the  violation  of  the  Act. 
—Holland  v.  State,  111  Ark.  214,  163  S.  W.  781. 


COMPETENCY  OF  WITNESSES.  787 

California.  A  wife  is  an  incompetent  witness  to  a  rape 
committed  upon  her  by  a  man  she  subsequently  married. 
—People  v.  Curiale,  137  Cal.  534,  70  P.  468. 

Where  a  witness  was  the  wife  of  defendant  at  the  time 
of  the  commission  of  his  assault  upon  her,  she  was  com- 
petent to  testify  against  him,  but  if  she  was  not  his  wife 
at  such  time,  but  became  such  afterwards,  she  could  not 
testify  without  his  consent. — People  v.  Johnson,  9  Cal. 
App.  233,  98  P.  682. 

The  marriage  of  a  girl  under  the  age  of  consent  to  de- 
fendant after  his  arrest,  and  before  his  trial,  for  a  rape 
committed  upon  her  before  their  marriage,  renders  her 
incompetent  to  testify  against  him. — People  v.  Souleotes, 
26  Cal.  App.  309,   146  P.  903. 

Offenses  Against  Other  Spouse. 
Numerous  statutes  provide  that  neither  husband  nor 
wife  may  testify  for  or  against  the  other,  except  for  a 
crime  or  offense  committed  by  one  against  the  other. 
California:  People  v.  Curiale,  137  Cal.  534,  70  P.  468 
(prosecution  for  intercourse  with  wife,  under  age,  before 
marriage;    wife  incompetent). 

Colorado:  Dill  v.  People,  19  Colo.  469,  36  P.  229  (perjury 
of  husband  in  making  false  affidavit  in  suit  for  divorce; 
wife   competent). 

Nebraska:  Lord  v.  State,  17*  Neb.  526,  23  N.  W.  507 
(adultery  of  husband;  wife  competent);  Hills  v.  State, 
61  Neb.  589,  85  N.  W.  836  (bigamy;  wife  competent). 
Texas:  Navarro  v.  State,  24  Tex.  App.  378,  6  S.  W.  542 
(kicking  wife,  thereby  producing  abortion;  she  is  a  com- 
petent witness);  Johnson  v.  State,  27  Tex.  App.  135,  11 
S.  W.  34  (separation  of  pair  does  not  remove  the  prohi- 
bition);  Frazier  v.  State,  48  Tex.  Cr.  R.  142,  86  S.  W. 
754  (assault  with  intent  to  commit  direct  rape  on  wife; 
this  being  no  crime,  she  cannot  be  permitted  to  testify) ; 
Murray  v.  State,  48  Tex.  Cr.  R.  141.  86  S.  W.  1024  (threats 
against  life  of  wife;  this  is  an  offense  against  her,  and  her 
testimony    is   admissible). 

Utah:  United  States  v.  Bassett,  5  Utah  131,  13  P.  237 
(polygamy;   wife  competent). 


788  COMPETENCY  OF  WITNESSES. 

California.  Where  a  husband  is  charged  with  having 
committed  a  crime  of  violence  upon  a  woman  after  his 
marriage  to  her,  she  is  a  competent  witness. — Kantro- 
witz.  In  re,  24  Cal.  App.  203,  140  P.  1078. 
Colorado.  A  wife  is  a  competent  witness  against  her  hus- 
band for  perjury  in  a  divorce  case. — Dill  v.  People,  19 
Colo.  475,   36   P.   229. 

New  Mexico.  The  wife  is  not  a  competent  witness  against 
her  husband  who  is  charged  with  the  crime  of  adultery 
under  a  federal  statute. — United  States  v.  Meyers,  14  N. 
M.  522,  99  P.  336. 

Oklahoma.  As  adultery  is  a  "public  offense"  and  also  a 
personal  offense  against  the  injured  husband  or  wife,  they 
become  competent  witnesses  to  prove  the  offense. — Kit- 
chens v.  State,  10  Okl.  Cr.  603,  140  P.  619;  Heacock  v. 
State,  4  Okl.  Cr.  606,  112  P.  949. 

Texas.  In  this  state,  the  wife  is  not  a  competent  witness 
against  her  husband  in  adultery  cases. — Sargent  v.  State, 
61  Tex.  Cr.  R.  34,  133  S.  W.  885. 

A  wife  is  not  a  competent  witness  against  her  husband 
in  an  incest  case,  though  they  have  since  been  divorced. 
— Vickers  v.   State,    (Tex.  Cr.  R.),  154   S.  W.  578. 

Upon  a  trial  for  burglary,  the  wife  of  defendant  can 
only  be  cross-examined  in  regard  to  matters  about  which 
she  testified  in  chief.— Lewis  v.  State,  (Tex.  Cr.  R.),  180 
S.   W.   248. 

NOTE    XLI. 
(To   Article   108.) 

At  Common  Law  the  parties  and  their  husbands  and  wives 
were  incompetent  in  all  cases.  This  incompetency  was  re- 
moved as  to  the  parties  in  civil,  but  not  in  criminal  cases, 
by  14  &  15  Vict.  c.  99,  s.  2;  and  as  to  their  husbands  and 
wives,  by  16  &  17  Vict.  c.  83,  ss.  1,  2.  But  sec.  2  expressly 
reserved  the  Common  Law  as  to  criminal  cases  and  proceed- 
ings   instituted   in   consequence   of  adultery. 

The  words  relating  to  adultery  were  repealed  by  32  & 
33  Vict.  c.  68,  s.  3,  which  is  the  authority  for  the  next  article. 

Persons  interested  and  persons  who  had  been  convicted 
of  certain  crimes  were  also  incompetent  witnesses,  but  their 
incompetency   was   removed   by    6  &   7   Vict.    c.    85. 


COMPETENCY  OF  WITNESSES.  789 

The  text  thus  represents  the  effect  of  the  Common  Law 
as   varied   by   four   distinct   statutory   enactments. 

By  5  &  6  Will.  IV.  c.  50,  s.  100,  inhabitants,  &c,  were 
made  competent  to  give  evidence  in  prosecutions  of  parishes 
for  non-repair  of  highways,  and  this  was  extended  to  some 
other  cases  by  3  &  4  Vict.  c.  26.  These  enactments,  how- 
ever, have  been  repealed  by  37  &  38  Vict.  c.  35,  and  c.  96 
(the  Statute  Law  Revision  Acts,  1874),  respectively.  Prob- 
ably this  was  done  under  the  impression  that  the  enactments 
were  rendered  obsolete  by  14  &  15  Vict.  c.  99,  s.  2,  which 
made  parties  admissible  witnesses.  A  question  might  be 
raised  upon  the  effect  of  this,  as  sec.  3  expressly  excepts 
criminal  proceedings,  and  a  prosecution  for  a  nuisance  is 
such  a  proceeding.  The  result  would  seem  to  be,  that  in 
cases  as  to  the  repair  of  highways,  bridges,  &c,  inhabitants 
and  overseers  are  incompetent,  unless,  indeed,  the  courts 
should  hold  that  they  are  substantially  civil  proceedings,  as 
to  which  see  R.  v.  Russell,   3  E.  &  B.   942. 


Article  109. 
[competency  of  husband  and  wife.] 

[Under  the  rules  of  the  common  law,  neither 
husband  nor  wife  is  competent  as  a  witness  in  a 
cause,  civil  or  criminal,  in  which  the  other  is  a 
party,  or  directly  interested  in  the  event  of  the 
action,  and  this  prohibition  extends  to  actions 
based  on  the  adultery  of  either  party,  (a) 

This  rule,  in  its  strictness  is  found  in  hardly 
any  jurisdictions,  for  statutes  have  in  some  de- 
gree removed  the  incompetency  of  a  spouse  to 
testify  for  or  against  the  other,  a  frequent  provi- 
sion being  that  the  incompetency  of  such  parties 
to  testify  shall  not  apply  to  civil  actions  brought 
by  one  against  the  other,  nor  to  criminal  prosecu- 

(a)    [1    Greenleaf    Ev.,    §    334.] 


790  COMPETENCY  OF  WITNESSES. 

tions  for  a  crime  committed  by  one  against  the 
other,  (b) 

These  statutes  vary  greatly,  however,  and  will 
have  to  be  consulted,  in  order  to  learn  the  state 
of  the  law  in  a  given  jurisdiction.]  (c) 

INCOMPETENCY  OF  SPOUSE  AS  WITNESS. 
Civil  Actions. 
Arkansas.  The  mere  fact  that  the  husband  is  a  party 
to  the  record,  does  not  of  itself  exclude  the  wife  as  a 
witness  on  behalf  of  the  other  parties,  since  the  rule  of 
exclusion  is  only  to  be  applied  to  cases  in  which  the  in- 
terest of  the  husband  is  to  be  affected  by  the  testimony 
of  the  wife. — Carr  v.  State,  42  Ark.  204;  overruling  Casey 
v.  State,  37  Ark.  67,  and  reaffirming  Collier  v.  State,  20 
Ark.  36. 

A  husband  is  a  competent  witness  in  an  action  where 
his  wife  sues  as  administratrix. — McCamey  v.  Wright,  90 
Ark.  608,   119   S.  W.   841. 

California.  The  wife  of  a  person  indicted  for  the  crime 
of  burglary  alleged  to  have  been  jointly  committed  by  him 
and  defendant  may  testify  for  the  state,  though  her  testi- 
mony would  tend  to  implicate  her  husband. — People  v. 
Langtree,  64  Cal.  256,  30  P.  813. 

Even  though  the  husband  is  insane  and  cannot  consent, 
the  wife  cannot  testify  against  him. — Falk  v.  Wittram, 
120  Cal.  479,  52  P.  707. 

(b)  [The  following  is  an  example  of  statutes  which  are 
substantially    identical    in    several    states: 

"A  husband  cannot  be  examined  for  or  against  his  wife 
without  her  consent,  nor  a  wife  for  or  against  her  husband, 
without  his  consent;  nor  can  either,  during  the  marriage  or 
afterward,  be,  without  the  consent  of  the  other,  examined 
as  to  any  communication  made  by  one  to  the  other  during 
the  marriage;  but  this  exception  does  not  apply  to  a  civil 
action  or  proceeding  by  one  against  the  other,  nor  to  a 
criminal  action  or  proceeding  committed  by  one  against  the 
other."  Rev.  St.  Utah,  §  3414,  subd.  1;  Van  Alstine's  Es- 
tate, In  re,  26  Utah  193,  72  P.   942;   1  Wigmore  Ev.,   §   488.] 

(c)  [1  Wigmore  Ev.,   §§    488,   600  et  seq.] 


COMPETENCY  OF  WITNESSES.  791 

Kansas.  A  wife  is  a  competent  witness  as  to  the  com- 
munications made  to  a  third  person  by  her  husband  in 
her  presence  and  hearing,  in  all  civil  actions  in  which 
the  husband  is  not  a  party  to  the  suit,  when  his  rights 
will  not  be  concluded  by  any  verdict  therein,  and  when 
such  communications  are  themselves  admissible. — Higbee 
v.  McMillan.  18  Kan.  133. 

Where  two  defendants  are  sued  jointly,  and  a  joint  an- 
swer and  defense  is  made  by  them,  the  wife  of  one  is  not 
competent  to  testify  to  a  matter  sustaining  the  joint  de- 
fense, and  which  necessarily  affects  the  right  of  her  hus- 
band equally  with  that  of  his  co-defendant. — Arn  v.  Mat- 
thews, 39  Kan.  272,  18  P.  65. 

In  a  contest  over  the  probate  of  a  will,  an  adversary 
proceeding,  a  husband  of  a  legatee  under  the  will,  was  not 
an  incompetent  witness,  such  a  proceeding  not  being 
classed  as  a  civil  action. — Lanning  v.  Gay,  70  Kan.  353, 
78  P.  810. 

Plaintiff,  claiming  to  be  the  child  and  sole  heir  of  the 
deceased  owner  of  the  land  in  controversy,  in  an  action 
of  ejectment  to  recover  possession  of  real  estate,  intro- 
duced her  mother  as  a  witness,  the  latter  testifying  that 
she  and  the  deceased  owner  of  said  land  had  been  mar- 
ried but  that  she  had  afterward  procured  a  divorce  from 
him;  held,  that  the  fact  of  her  divorce  being  established, 
she  was  a  competent  witness  for  plaintiff  upon  the  ques- 
tion of  heirship. — Lyon  v.  Lash,  79  Kan.  342.  99  P.  598. 

Nebraska.  In  an  action  by  a  husband  against  his  wife 
to  declare  a  trust  in  his  favor  in  certain  real  property  held 
in  her  name,  the  husband  is  not  a  competent  witness. — 
Reed  v.  Reed,  70  Neb.  775.  98  N.  W.  76. 

Oklahoma  Husband  and  wife  are  not  competent  wit- 
nesses for  each  other  in  civil  actions. — Nix  v.  Gilmer.  5 
Okl.  740,  50  P.   131. 

Where  the  husband  is  interested  in  the  result  of  an 
action  even  though  it  is  brought  in  the  name  of  third 
parties,  his  wife  is  an  incompetent  witness. — Western 
National  Life  Ins.  Co.  v.  Williamson-Halsell-Frasier  Co., 
37  Okl.  213,  131  P.   691. 


792  COMPETENCY  OF  WITNESSES. 

Oregon.  A  husband,  objecting  to  the  testimony  of  his 
wife  on  the  ground  that  it  was  "incompetent,  irrelevant 
and  immaterial,"  and  failing  to  object  to  her  competency 
as  a  witness  for  the  reason  that  she  was  his  wife  and 
therefore  not  competent  to  testify  against  him  without 
his  consent,  waives  all  objections  to  his  wife's  competency 
to  testify  against  him  generally. — State  v.  Von  Klein,  71 
Or.   159,   142   P.   549. 

Texas.  One  claiming  to  be  the  common  law  wife  of  de- 
cedent, is  incompetent  to  testify  where  she  contests  for 
one-half  of  her  husband's  estate. — Schwingle  v.  Keifer, 
105   Tex.   609,    153   S.   W.   1132. 

Utah.  A  wife  may  testify  for  the  husband  where  it  ap- 
pears that  he  impliedly  consents. — Murphy  v.  Ganey,  23 
Utah  633,  66  P.  190. 

When  Interest  Is  Joint. 
Kansas.  In  an  action  where  a  husband  and  wife,  together 
with  other  persons,  have  been  made  parties,  and  in  which 
the  judgment  may  be  rendered  for  or  against  any  one  or 
more  of  the  plaintiffs,  and  for  or  against  one  or  more  of 
the  defendants,  both  the  husband  and  wife  are  competent 
witnesses  for  or  against  any  one  or  more  of  either  the 
plaintiffs  or  defendants,  except  for  or  against  each  other. 
—Ruth  v.  Ford,   9  Kan.   17. 

When  their  joint  interest  as  parties  has  ceased  to  exist, 
one  is  incompetent  to  testify  for  the  other. — Jenkins  v. 
Levis,  25  Kan.  479,  481. 

Where  husband  and  wife  have  a  joint  interest  in  the 
action,  either  is  a  competent  witness  for  the  other. — Chi- 
cago, K.  &  W.  R.  Co.  v.  Anderson,  42  Kan.  297,  21  P.  1059. 
Oklahoma.  A  husband  or  wife  is  a  competent  witness 
for  the  other  "when  they  are  joint  parties  and  have  a 
joint  interest  in  the  action." — Guthrie  v.  Mitchell,  38  Okl. 
55,  132  P.  138;  St.  Louis  &  S.  F.  R.  Co.  v.  Bloom,  39  Okl. 
78,    134   P.    432. 

Husband   and   Wife   As  Joint   Defendants. 
Arkansas.     A  husband  is  not  a  competent  witness  against 
the  wife  wherein  both  are  defendants.— Reaves  v.  Coffman, 
87  Ark.  60,  112  S.  W.  194. 


COMPETENCY  OF  WITNESSES.  793 

Idaho.  In  an  action  against  the  husband  and  wife  jointly, 
where  the  property  rights  of  the  wife  were  assailed  and 
the  husband  and  codefendant  had  defaulted,  under  Sec. 
4049,  Rev.  St.  1887,  the  wife  had  the  privilege  to  defend 
in  her  own  right  and  also  defend  her  husband's  interests 
and  was  a  competent  witness  in  the  case. — Larson  v. 
Carter,  14  Ida.  511,  94  P.  825. 

Kansas.  Where  husband  and  wife  are  joint  defendants, 
they  are  by  statute  competent  to  testify  for  or  against 
each  other.— Pfefferle  v.  State,  39  Kan.  128,  17  P.  828. 

In  a  foreclosure  proceeding  against  husband  and  wife, 
the  fact  that  judgment  was  first  rendered  against  her  hus- 
band, did  not  make  him  any  the  less  a  joint  party  with 
the  wife  and  therefore  an  incompetent  witness. — Atchison 
Sav.  Bank  v.  Means,  61  Kan.  857,  58  P.  989. 
Nebraska.  In  an  action  against  a  husband  and  wife  where 
the  proceeding  is  adversary,  a  husband  is  not  a  competent 
witness  against  the  wife,  her  position  being  purely  de- 
fensive and  she  seeking  no  affirmative  relief,  and  the 
judgment  against  her  without  the  testimony  of  the  hus- 
band could  not  be  sustained. — Weckerly  v.  Taylor,  74  Neb. 
772,    105   N.   W.   254. 

Oklahoma.  Where  a  husband  and  wife  are  joint  makers  of 
notes  and  mortgage  sued  on,  and  joint  defendants,  the 
wife  is  a  competent  witness. — Young  v.  Blackert,  (Okl.), 
151  P.   1057. 

Matters  of  Agency. 

Arkansas.  By  statute,  either  husband  or  wife  may  tes- 
tify for  the  other  in  regard  to  any  business  transacted 
by  the  one  for  the  other  in  the  capacity  of  agent. — Gunter 
v.  Earnest,  68  Ark.  180,  56  S.  W.  876. 

Under  subdivision  4,  sec.  3095,  Kirby's  Digest,  a  hus- 
band is  a  competent  witness  as  the  agent  of  his  wife. — 
Fidelity  Phenix  Fire  Ins.  Co.  v.  Friedman,  117  Ark.  71, 
174  S.  W.  215. 

Kansas.  Wife  acting  as  agent  in  protecting  property  of 
husband  from  trespass  is  competent  witness  for  him. — 
Fisher  v.  Conway.  21   Kan.   18,  23. 


794  COMPETENCY  OF  WITNESSES. 

An  agent  may  testify  as  to  his  authority  to  act  for  his 
principal,  and  this  rule  is  not  changed  by  the  fact  that 
the  agent  is  the  husband  of  the  plaintiff. — Wichita  &  W. 
R.  Co.  v.  Kuhn,  38  Kan.  104,  16  P.  75;  Paulsen  v.  Hall, 
39  Kan.  365,  18  P.  225. 

A  husband,  as  the  agent  of  the  wife,  is  a  competent 
witness  to  testify  to  transactions  between  himself  per- 
sonally as  her  agent  and  third  parties,  in  the  absence  of 
a  statute  expressly  authorizing  it. — Treiber  v.  McCor- 
mack,  90  Kan.  675,  136  P.  268. 

Oklahoma.  A  husband  is  an  incompetent  witness  against 
the  wife  except  concerning  transactions  as  her  agent,  or 
when  they  are  joint  parties  and  have  a  joint  interest  in 
the  action;  but  in  no  case  shall  either  be  permitted  to 
testify  concerning  any  communications  made  by  one  to 
the  other  while  the  marriage  relation  existed. — Herron  v. 
M.  Rumley  Co.,  29  Okl.  317,  116  P.  952. 

Where  the  wife  establishes  her  agency  for  her  husband, 
she  is  a  competent  witness  in  an  action  for  or  against 
him.— McDonald  v.  Cobb,   (Okl.),  153  P.  138. 

The  husband  of  a  woman  suing  for  damages  for  wrong- 
ful death  of  her  first  husband,  is  incompetent,  under  Rev. 
Laws  1910,  Sec.  5050,  he  not  acting  as  her  agent  in  the 
action.— Smith  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  42  Okl.  577, 
142   P.   398. 

A  husband  is  a  competent  witness  as  to  any  business 
transacted  by  him  for  his  wife  as  her  agent. — Smith  v. 
Travel,  19  Okl.  512,  94  P.  529. 

It  is  not  error,  under  Sec.  5842  of  the  Compiled  Laws 
of  Okl.,  1909,  which  provides  that  a  husband  or  wife  are 
competent  to  testify  for  each  other  concerning  transac- 
tions in  which  one  acted  as  the  agent  of  the  other,  for 
a  wife  to  testify  that  she  was  the  agent  of  her  husband. 
—Armstrong,  Byrd  &  Co.  v.  Crump,  25  Okl.  452,  106  P.  855. 

Sexual  Crimes. 

Nebraska.  Upon  a  trial  for  adultery  by  the  husband,  the 
wife  is  a  competent  witness  against  him. — Lord  v.  State, 
17  Neb.  526,  23  N.  W.  507. 


COMPETENCY  OF  WITNESSES.  795 

The  wife  is  a  competent  witness  in  behalf  of  her  hus- 
band in  an  action  for  criminal  conversation. — Smith  v. 
Meyers,  52  Neb.  70.  71  N.  W.  1006. 

A  wife  is  a  competent  witness  against  her  husband  in  a 
prosecution  for  bigamy.— Hills  v.  State,  61  Neb.  589,  85 
X.   W.   836. 

South  Dakota.  Under  Comp.  Laws  Dakota  1887,  Sec.  5260, 
prohibiting  a  wife  from  testifying  against  her  husband 
without  his  consent,  except  in  a  criminal  action  for  a 
crime  committed  by  him  against  her,  a  wife  is  an  incom- 
petent witness  in  an  action  against  the  husband  for  incest. 
—State  v.  Burt.  17  S.  D.  7,  94  N.  W.  409. 
Texas.  Upon  cross-examination  a  wife  cannot  be  asked 
questions  the  answers  to  which  would  establish  the  ille- 
gitimacy of  her  children  born  in  wedlock. — Meyer  v.  State. 
(Tex.  Cr.  R).  41  S.  W.  632. 

Washington.  A  wife  cannot  testify  against  her  husband 
in  his  action  for  seduction. — Speck  v.  Gray,  14  Wash.  589, 
45  P.  143. 

In  an  action  for  adultery,  the  husband  of  an  alleged 
paramour  of  defendant  is  a  competent  witness,  she  not 
being  on  trial  charged  with  a  crime. — State  v.  Nelson,  39 
Wash.  221,  81  P.  721. 

Article  110. 
communications  during  mabbiage. 

No  husband  is  compellable  to  disclose  any  com- 
munication made  to  him  by  his  wife  during  the 
marriage,  and  no  wife  is  compellable  to  disclose 
any  communication  made  to  her  by  her  husband 
during  the  marriage,  (a) 

CD  16  &  17  Vict.  c.  k:;,  s  :',  n  is  doubtful  whether  this 
would  apply  to  a  widower  or  divorced  person,  questioned 
after  the  dissolution  <>f  the  marriage  as  to  what  had  been 
communicated  to  him  whilst  it  lasted.  [By  the  common 
law  of  this  country,  the  prohibition  operates  after  the  dis- 
solution   of    tin-    marriage.      i    Greenl.    Bv.,    §    254;    Brown    v. 

W l.    121    Mass.    137;    Drew   v.   Tarbell,    llT    Mass.    :in:   Jenne 

v.  Marble.  37  Mich.  319;  Crose  v.  Rutledpe,  81  Til.  2fifi;  Litch- 
field v.   Merritt.   102  Mass    620;    1   Witftnore  Ev.,  §   2332  et  seq.] 


796  COMPETENCY  OF  WITNESSES. 

COMMUNICATIONS    OF    HUSBAND    AND    WIFE. 

Communications  between  husband  and  wife  are  inad- 
missible.— Nolen  v.  Harden,  43  Ark.  307,  51  Am.  Rep.  563; 
People  v.  Mullings.  83  Cal.  138,  23  P.  229. 
California.  The  relation  of  husband  and  wife  being 
shown,  neither  spouse  can  be  examined  as  to  communica- 
tions between  them,  without  the  consent  of  the  other. — 
Humphrey  v.  Pope,  1  Cal.  App.  374,  82  P.  223. 
Kansas.  A  mother  is  not  an  incompetent  witness  to  tes- 
tify to  conversations  had  with  her  deceased  husband,  in 
a  suit  brought  by  her  son  against  his  father's  estate,  since 
her  evidence  was  not  for  or  against  the  deceased  husband, 
and  his  interest  in  the  estate  had  passed,  on  his  death, 
to  others.— Schaffner's  Estate,  In  re,  92  Kan.  570,  141  P. 
251. 

Nebraska.  In  an  action  against  a  fraternal  insurance  com- 
pany upon  its  certificate  payable  to  the  deceased  infant 
children,  the  husband  was  an  incompetent  witness  as  to 
communications  made  to  him  by  his  wife,  over  his  or 
plaintiff's  objections. — Metzger  v.  Royal  Neighbors  of 
America,  86  Neb.  61,  124  N.  W.  913. 

Oklahoma.  Sec.  6834,  Comp.  Laws  1909,  which  provides 
that  a  husband  or  wife  shall  not  disclose  communications 
between  them  during  the  marriage  relation,  does  not  de- 
prive the  husband  or  wife  of  any  testimony  which  either 
may  give  in  the  other's  behalf  which  would  be  competent 
if  either  was  not  the  wife  or  husband. — Hampton  v.  State, 
7   Okl.   Cr.   291,   123   P.    571. 

Texas.  Threats  communicated  by  a  deceased  husband  to 
his  wife,  of  an  intention  to  kill  another,  are  privileged 
communications. — Gant  v.  State,  55  Tex.  Cr.  R.  284,  116  S. 
W.  801. 

Information  coming  to  a  husband  or  wife  in  consequence 
or  by  reason  of  the  existence  of  the  marriage  relation  is 
to  be  treated  as  confidential,  and  the  confidence  which 
the  law  creates  while  the  parties  remain  in  the  most  in- 
timate of  all  relations  cannot  be  broken  even  after  that 
relation  has  been  dissolved. — Lanham  v.  Lanham,  105  Tex. 
91,   145   S.  W.   336. 


COMPETENCY  OF  WITNESSES.  797 

Utah.  Even  though  a  marriage  was  entered  into  for  the 
sole  purpose  of  closing  the  mouth  of  the  wife,  and  to 
prevent  the  government  from  obtaining  her  testimony, 
she  was  an  incompetent  witness. — United  States  v.  White, 
4  Utah  499,  11  P.  570. 

Washington.  "Any  communications."  mentioned  in  Rem. 
&  Bal.  Code,  Sec.  1214,  means  confidential  communica- 
tions, or  such  as  were  induced  by  the  marriage  relation. — 
State  v.  Snyder,  84  Wash.  485,  147  P.  38;  Sackman  v. 
Thomas,  24  Wash.  660,  64  P.  819. 

What   Are    Not   Confidential    Communications. 

Nebraska.  A  woman  whose  marriage  with  decedent  was 
annulled  during  his  lifetime  because  of  the  existence  of  a 
former  husband  at  the  time  of  the  marriage,  is  a  com- 
petent witness  against  his  estate  as  to  facts  learned  other- 
wise than  by  communications  from  deceased  during  the 
existence  of  the  marriage  relation. — Thomas  v.  Estate  of 
John  D.  Thomas,  64  Neb.  581,  90  N.  W.  630. 

A  threatening  letter  written  by  the  husband  to  his  wife 
while  they  were  living  apart,  is  not  a  confidential  com- 
munication between  husband  and  wife  within  the  statute. 
— McNamara  v.  McNamara,  99  Neb.  9,  154  N.  W.  858. 
Texas.  Charge  by  wife  of  murder  of  another  by  her  hus- 
band, and  his  admission  of  the  charge,  made  in  the  pres- 
ence of  third  persons,  is  not  a  privileged  communication. 
—Hampton  v.  State,   (Tex.  Cr.  Ft.),  183  S.  W.  887. 

Utah.  The  husband's  condition  as  to  being  intoxicated, 
unless  it  should  appear  to  have  been  specially  confided 
to  the  wife  in  the  absence  of  others,  cannot  be  regarded 
as  in  the  nature  of  a  confidential  communication. — Van 
Alstine's  Estate,   In  re,  26   Utah  193,  72  P.  942. 

Washington.  Testimony  of  a  married  woman  that  certain 
property  was  purchased  in  part  with  money  given  to  her 
by  her  husband  is  not  a  violation  of  the  rule  forbidding 
evidence  as  to  confidential  communications. — Sackman  v. 
Thomas,  24  Wash.  660.  64   P.  819. 

Testimony  of  a  divorced  wife  that  on  one  occasion  she 
found  her  then  husband  in  the  act  of  sexual  Intercourse 


798  COMPETENCY  OF  WITNESSES. 

with  her  daughter,  the  complaining  witness,  is  not  the  dis- 
closing of  a  confidential  communication. — State  v.  Snyder, 
84  Wash.  485,   147  P.  38. 

Communications  In   Presence  of  Third   Persons. 

Kansas.  A  conversation  participated  in  by  a  husband  and 
wife  and  a  third  person,  is  in  no  sense  a  privileged  com- 
munication and  may  be  narrated  in  evidence  by  such 
third  person.— State  v.  Gray,  55  Kan.  135,  39  P.  1050. 

A  conversation  between  husband  and  wife  may  be  tes- 
tified to  by  one  who  overheard  it. — State  Bank  v.  Hutch- 
inson, 62  Kan.  9,  61  P.  443. 

Texas.  A  conversation  between  husband  and  wife  may 
be  testified  to  by  a  concealed  listener  who  overheard  it 
or  by  anyone  who  should  overhear  such  conversation. — 
Gant  v.  State,  55  Tex.  Cr.  R.  284,   116  S.  W.  801. 

Communications    By    Letters. 

Arkansas.  A  letter  addressed  to  a  third  person,  given 
by  a  prisoner  to  his  wife  for  delivery,  is  not  a  privileged 
communication,  though  taken  from  her  against  her  will. 
—Ward  v.  State,  70  Ark.  204.  66  S.  W.  926. 

A  letter  written  by  accused  to  his  wife,  but  handed  by 
the  negro  messenger  to  the  wife's  father  before  she  re- 
ceived it,  is  admissible. — Hammons  v.  State,  73  Ark.  495, 
84  S.  W.  718. 

Letters,  written  by  defendant  on  trial  for  bigamy,  to 
his  first  wife,  and  introduced  in  evidence  only  for  the  pur- 
pose of  establishing  the  fact  of  the  first  marriage,  though 
received  by  the  prosecuting  attorney  from  the  present 
wife  through  third  parties,  were  competent  against  de- 
fendant over  his  objection  that  they  were  privileged  com- 
munications.—McNeill  v.  State,  117  Ark.  8,  173  S.  W. 
826;    for  dissenting  opinion,   173  S.  W.  1200. 

Kansas.  A  letter  from  husband  to  wife,  delivered  by  the 
wife's  father  to  her  and  handed  back  to  him  by  her  after 
reading,  and  afterwards  in  his  custody  and  control,  may 
be  introduced  in  evidence.— State  v.  Buffington,  20  Kan. 
599. 


COMPETENCY  OF  WITNESSES.  799 

Oregon.  In  this  state,  the  fact  that  letters  passing  be- 
tween husband  and  wife  were  taken  from  the  person  of 
the  husband  at  the  time  of  his  arrest,  did  not  prevent 
their  admissibility.— State  v.  Wilkins,  72  Or.  77,  142  P. 
589. 

Texas.  Letters  concerning  business,  written  by  a  hus- 
band to  his  wife,  are  not  admissible  even  after  his  death. 
—Mitchell  v.  Mitchell.  80  Tex.  101,  15  S.  W.  705. 

After  Termination   of   Marriage. 
Oklahoma.     A   divorced    wife   or  husband   may    testify   to 
independent  facts  coming  within  their  knowledge  after  the 
marriage  relation  has  ceased. — Adkins  v.  Wright,  37  Okl. 
771,  131  P.  686. 

Texas.  The  privilege  of  secrecy  as  to  communications 
between  husband  and  wife  extends  beyond  dissolution  of 
the  marital  relations  by  death  or  divorce. — Gant  v.  State, 
55  Tex.  Cr.  R.  284,  116  S.  W.  801. 

A  divorced  husband  or  wife  is  not  permitted  to  testify 
against  the  other  after  divorce,  as  to  confidential  com- 
munications made  during  marriage. — Miller  v.  State,  (Tex. 
Cr.  R.),  144  S.  W.  239;  t,anham  v.  Lanham,  105  Tex. 
91,   145   S.   W.   336. 

Washington.  A  divorced  wife  is  a  competent  witness 
against  her  former  husband  except  as  to  communications 
made  during  their  marriage. — State  v.  Snyder,  84  Wash. 
485,  147  P.  38;    State  v.  Nelson,  39  Wash.   221,  81  P.   721. 

Article  ill.* 

JUDGES    A.\[)    ADVOCATES    PRIVILEGED    AS    TO   OERTAIK    QUESTIONS. 

It  is  doubtful  whether  a  judge  is  compellable 
to  testify  as  to  anything  which  came  to  his  knowl- 
edge in  court  as  such  judge,  (a)     It  seems  that  a 

(a)  R.  v.  Gazard,  8  C.  &  P.  595.  [For  judge  acting  on  his 
own  knowledge,  or  as  a  witness,  see  3  Wigmore  Ev„  §§  1805, 
1919.] 

•See    Note   at   end   of  chapter. 


800  COMPETENCY  OF  WITNESSES. 

barrister  cannot  be  compelled  to  testify  as  to 
what  he  said  in  court  in  his  character  of  a  bar- 
rister, (b) 

PRIVILEGE   OF  JUDGE. 

Colorado.  It  was  not  error  to  exclude  the  testimony  of  a 
police  magistrate  as  to  the  grounds  upon  which  he  based 
his  decision  of  a  case  tried  before  him. — Noland  v.  Peo- 
ple,  33   Colo.   322,   80  P.  887. 

KNOWLEDGE   OR   TESTIMONY   OF   JUDGE. 

A  trial  judge  of  a  court  of  record,  is  not  a  competent 
witness  for  one  of  the  parties  in  a  case  tried  before  him. 
—Rogers  v.  State,  60  Ark.  76,  29  S.  W.  894;  Gray  v. 
Crockett,  35  Kan.  66,  10  P.  452;  Maitland  v.  Zanga,  14 
Wash.  92,  44  P.   117. 

A  trial  judge  of  a  court  of  record,  before  whom  a  cause 
is  tried  with  a  jury,  cannot  testify  for  one  of  the  parties 
thereto,  over  the  objection  of  the  other,  as  to  a  material 
point  at  issue,  in  the  absence  of  a  statute  authorizing 
him  to  do  so.— Powers  v.  Cook,  (Okl.),  149  P.  1121;  State 
v.  Sefrit,  82  Wash.  520,  144  P.  725. 

The  judge  may  take  judicial  notice  of  the  reasonable- 
ness of  an  attorney's  fee  demanded,  and  no  evidence  there- 
of need  be  given. — Edwards  v.  Grand,  121  Cal.  254,  53  P. 
796;  Hellier  v.  Russell,  136  Cal.  143,  68  P.  581;  Warnock 
v.  Itawis,  38  Wash.  144,  80  P.  297. 

Colorado.  Knowledge  of  the  judge  before  whom  a  case 
was  tried  that  plaintiff  was  a  foreign  corporation  does 
not  supply  the  place  of  proof. — Utah  Nursery  Co.  v. 
Marsh,  46  Colo.  211,  103  P.  302. 

Texas.  Where  no  objection  is  made  to  the  presiding 
judge  being  sworn  and  testifying  or  to  his  evidence,  it 
cannot  be  made  on  appeal. — Wright  v.  McCampbell,  75 
Tex.  644,   13  S.  W.   293. 


(b)   Curry   v.    Walter,    1    Esp.    456.      [For   attorney   or   coun- 
sel  as   witness,   see   3   Wigmore   Ev.,    §    19ll.] 


COMPETENCY  OF  WITNESSES.  801 

ATTORNEY  AS  WITNESS. 

An  attorney  is  a  competent  witness  for  his  client. — Beall 
v.  Territory,  1  N.  M.  507;  Alexander  v.  Ransom,  16  S. 
D.  302,  92  N.  W.  418;  Mealer  v.  State,  32  Tex.  Cr.  R.  102, 
22  S.  W.  142. 

California.  There  is  no  rule  of  law  which  prohibits  an 
attorney  of  record,  who  is  a  witness  in  a  case,  from  sum- 
ming it  up  before  the  court  or  jury.  If  a  rule  of  the  court 
prohibits  such  attorney  from  arguing  a  case  without  per- 
mission of  the  court,  the  court  may  give  permission. — 
Branson  v.   Caruthers,   49   Cal.   374. 

In  a  prosecution  for  obtaining  property  by  false  pre- 
tenses it  is  permissible  for  the  prosecuting  attorney  to 
testify  as  to  information  acquired  in  a  civil  suit  as  attor- 
ney for  the  adverse  party  to  defendant,  which  tended  to 
show  guilty  knowledge — People  v.  Hamberg,  84  Cal.  468, 
24   P.   298. 

Colorado.  An  attorney  is  a  competent  witness  in  behalf 
of  his  client  in  the  very  cause  which  he  prosecutes  or  de- 
fends.— Sholine  v.  Harris,  22  Colo.  App.  63,  123  P.  330. 
Idaho.  Attorneys  should  offer  themselves  as  witnesses 
for  their  clients  only  in  case  of  extreme  necessity. — Se- 
bree  v.  Smith,  2  Ida.  359,  16  P.  915. 

Kansas.  The  fact  that  a  person  was  an  attorney  in  the 
case,  or  that  his  compensation  as  such  was  contingent  on 
success,  does  not  render  him  incompetent  as  a  witness. 
—Central  Branch  U.  P.  R.  Co.  v.  Andrews,  41  Kan.  370, 
21    P.    276. 

Utah.  Attorneys  should  not  be  called  as  witnesses  in 
trials  in  which  they  are  engaged  unless  in  cases  where 
it  is  absolutely  necessary. — McLaren  v.  Gillispie,  19  Utah 
137,  56  P.  680. 

NOTE    XLII. 

(To   Article   111.) 

The  cases  on  which  these  articles  are  founded  are  only 
Nisi  Prius  decisions;  but  as  they  are  quoted  by  writers  of 
eminence  (1  Ph.  Ev.  139;  T.  E.  s.  859),  I  have  referred  to 
them. 


802  COMPETENCY  OF  WITNESSES. 

In  the  trial  of  Lord  Thanet,  for  an  attempt  to  rescue 
Arthur  O'Connor,  Serjeant  Shepherd,  one  of  the  special  com- 
missioners, before  whom  the  riot  took  place  in  court  at 
Maidstone,  gave  evidence,  R.  v.  Lord  Thanet,  27  S.  T.   836. 

I  have  myself  been  called  as  a  witness  on  a  trial  for 
perjury  to  prove  what  was  said  before  me  when  sitting  as 
an  arbitrator.  The  trial  took  place  before  Mr.  Justice 
Hayes  at  York,   in   1869. 

As  to  the  case  of  an  advocate  giving  evidence  in  the  course 
of  a  trial  in  which  he  is  professionally  engaged,  see  several 
cases   cited  and   discussed   in   Best,   ss.    184-186. 

In  addition  to  those  cases,  reference  may  be  made  to  the 
trial  of  Home  Tooke  for  a  libel  in  1777,  when  he  proposed 
to  call  the  Attorney-General  (Lord  Thurlow),  20  S.  T.  740. 
These  cases  do  not  appear  to  show  more  than  that,  as  a 
rule,  it  is  for  obvious  reasons  improper  that  those  who  con- 
duct a  case  as  advocates  should  be  called  as  witnesses  in  it. 
Cases,  however,  might  occur  in  which  it  might  be  absolutely 
necessary  to  do  so.  For  instance,  a  solicitor  engaged  as 
an  advocate  might,  not  at  all  improbably,  be  the  attesting 
witness    to    a    deed   or    will. 


Article  112. 
evidence  as  to  affairs  of  state. 

No  one  can  be  compelled  to  give  evidence  re- 
lating to  any  affairs  of  State,  or  as  to  official 
communications  between  public  officers  upon  pub- 
lic affairs,  except  with  the  permission  of  the  of- 
ficer at  the  head  of  the  department  concerned,  (a) 
or  to  give  evidence  of  what  took  place  in  either 
House  of  Parliament,  without  the  leave  of  the 
House,  though  he  may  state  that  a  particular  per- 
son acted  as  Speaker,  (b) 

(a)  Beatson  v.  Skene,  5  H.  &  N.  838;  [4  Wigmore  Ev.,  § 
2375.] 

(b)  Chubb  v.  Salomons,  3  Car.  &  Kir.  77;  Plunkett  v.  Cob- 
bett,   5   Esp.   136. 


COMPETENCY  OF  WITNESSES.  803 

AFFAIRS   OF   STATE. 

Pennsylvania.  The  governor  is  the  absolute  judge  of  what 
official  communications  to  himself  or  his  department  may- 
or may  not  be  revealed.— Hartranft's  Appeal,  85  Pa.  433, 
27  Am.  Rep.  667. 

The  president  of  the  United  States,  the  governors  of  the 
several  states  and  their  cabinet  officers  are  not  bound  to 
produce  papers  or  disclose  information  committed  to  them, 
in  a  judicial  inquiry,  when  in  their  own  judgment  the 
disclosure  would  on  public  grounds  be  inexpedient. — Hart- 
ranft's Appeal,  85  Pa.  433,  27  Am.  Rep.  667. 
United  States.  Public  policy  forbids  the  maintenance  of 
any  suit  in  a  court  of  justice,  the  trial  of  which  would  in- 
evitably lead  to  the  disclosure  of  matters  which  the  law 
regards  as  confidential  and  respecting  which  it  will  not 
allow  the  confidence  to  be  violated.  (Action  to  recover 
for  secret  services  in  entering  the  Confederate  lines  dur- 
ing the  Rebellion  and  remaining  there  during  the  war, 
under  contract  between  claimant  and  the  President.) — 
Totten  v.  United  States,  92  U.  S.  105,  23  L.  Ed.  605. 

Article  113. 
information  as  to  commission  of  offenses. 

In  cases  in  which  the  government  is  imme- 
diately concerned  no  witness  can  be  compelled  to 
answer  any  question,  the  answer  to  which  would 
tend  to  discover  the  names  of  persons  by  or  to 
whom  information  was  given  as  to  the  commis- 
sion of  offenses. 

In  ordinary  criminal  prosecutions  it  is  for  the 
judge  to  decide  whether  the  permission  of  any 
such  question  would  or  would  not,  under  the  cir- 
cumstances of  the  particular  case,  be  injurious  to 
the  administration  of  justice,  (a) 

(a)  R.  v.  Hardy,  24  S.  T.  811:  A  Q.  v.  Bryant,  15  M.  & 
W.  169;  R.  v.  Richardson,  3  F.  &  F.  693:  [4  Wigmore  Ev„  5 
2374]. 


804  COMPETENCY  OP  WITNESSES. 

COMMUNICATIONS   AS   TO   COMMISSION   OF 
OFFENSES. 

Indiana.  Communications  made  to  a  prosecuting  attorney 
relative  to  criminals  or  suspected  persons  are  privileged, 
and  cannot  be  divulged  without  the  consent  of  the  person 
making  them.  The  immunity  from  disclosure  of  communi- 
cations so  made  is  a  privilege  personal  to  the  one  making 
them,  which  is  not  waived  by  his  voluntarily  testifying 
generally,  in  an  action  against  him  for  malicious  prosecu- 
tion, in  his  own  behalf,  but  is  waived,  if,  being  a  witness 
in  his  own  behalf,  he  voluntarily  discloses  what  statements 
he  made  to  the  prosecuting  attorney,  who  may  then  testify 
in  relation  to  the  communication. — Oliver  v.  Pate,  43  Ind. 
132. 

Kansas.  Communications  made  by  a  complaining  witness 
to  the  prosecuting  attorney  concerning  his  knowledge  of 
matters  relating  to  the  probable  guilt  of,  or  innocence  of 
the  defendant  are  privileged,  and  cannot  be  given  in  evi- 
dence over  his  objection  in  an  action  against  him  for 
malicious  prosecution. — Michael  v.  Matson,  81  Kan.  360, 
105  P.  537. 

Public  policy  is  not  served  by  withholding  communica- 
tions which  have  not  been  made  in  good  faith  to  the  prose- 
cuting officer,  but  which,  on  the  contrary,  are  clearly 
shown  to  have  been  made  as  part  of  a  vile  conspiracy 
to  blacken  and  defame  one  who  is  known  by  the  authors 
of  the  communications  to  be  wholly  innocent  of  wrong- 
doing.—State   v.  Wilcox,   90   Kan.   80,   132   P.   982. 

Massachusetts.  In  an  action  for  falsely  and  maliciously 
representing  to  the  treasury  department  of  the  United 
States  that  the  plaintiff  was  intending  to  defraud  the  reve- 
nue, the  defendants  cannot  be  compelled  to  answer  in- 
terrogatories, filed  by  the  plaintiff,  inquiring  whether  they 
did  not  give  or  cause  to  be  given  to  the  department  in- 
formation of  supposed  or  alleged  frauds  on  the  revenue 
contemplated  by  plaintiff. — Worthington  v.  Scribner,  109 
Mass.  487. 

North  Dakota.  A  statement  made  by  defendant  to  the  as- 
sistant district  attorney  in  attempting  to  have  a  prosecu- 


COMPETENCY  OF  WITNESSES.  805 

tion  against  him  dismissed,  cannot  be  considered  as  privi- 
leged as  communications  between  attorney  and  client. — 
State  v.    Schumacher.    (N.   D.),    132   N.   W.    143. 

Article  114. 
competency  of  jurors. 

A  petty  juror  may  not  (a)  and  it  is  doubtful 
whether  a  grand  juror  may(b)  give  evidence  as 
to  what  passed  between  the  jurymen  in  the  dis- 
charge of  their  duties.  It  is  also  doubtful  whether 
a  grand  juror  may  give  evidence  as  to  what  any 
witness  said  when  examined  before  the  grand 
jury.(c) 

JUROR'S  TESTIMONY. 
Nebraska.  A  juror  will  not  be  permitted  to  state  to  his 
fellow  jurors,  while  they  are  considering  their  verdict, 
facts  in  the  case  within  his  own  personal  knowledge.  He 
should  make  the  same  known  during  the  trial,  and  testify 
as  a  witness  in  the  case. — Richards  v.  State,  36  Neb.  17, 
53  N.  W.  1027. 

JUROR'S  IMPEACHMENT  OF  VERDICT. 
California.  A  juror  cannot  impeach  a  verdict  by  swear- 
ing that  he  did  not  understand  it,  or  that  he  was  too 
timid  and  confused  to  express  his  dissent  at  the  time  when 
he  ought  to  have  dissented;  it  having  been  read  by  the 
foreman  and  by  the  clerk  on  the  return  of  the  jury  into 
court,  and  there  having  been  no  dissent  when  the  jury 
were  asked  if  it  was  their  verdict. — People  v.  Kloss,  115 
Cal.   567,  47   P.  459. 

(a)  Vaise  v.  Delaval,  1  T.  R.  11;  Burgess  v.  Langley,  5 
M.    &    G.    722.      Best    Ev.    Am.    ed.    561,    note. 

(b)  1  Ph.  Ev.  140;  T.  E.  s.  863;  State  v.  Fasset,  16  Conn. 
457;  Beam  v.  Link,  27  Mo.  261;  Imlay  v.  Rogers,  2  Halst. 
N.    J.     347. 

(c)  [This  is  not  the  general  rule  in  this  country.  See 
citations,    infra.] 


806  COMPETENCY  OF  WITNESSES. 

Kansas.  On  a  petition  for  a  new  trial,  it  is  not  competent 
to  introduce  evidence  showing  what  one  of  the  jurors  said, 
after  the  termination  of  the  original  trial,  as  to  what 
his  knowledge,  opinions  and  feelings  with  reference  to 
the  case  were  at  the  time  of  the  trial,  or  prior  thereto. 
— Gottleib  Brothers  v.  Jasper,  27  Kan.  770. 

Nebraska.  Affidavits  may  be  received  for  the  purpose  of 
avoiding  a  verdict  to  show  any  matter  occurring  during 
the  trial,  or  in  the  jury  room,  which  does  not  essentially 
inhere  in  the  verdict  itself;  as  where  a  verdict  for  dam- 
ages is  ascertained  by  aggregation  and  average  without 
subsequent  ratification,  or  where  it  is  made  to  depend  upon 
chance,  or  where  a  part  of  the  jury  become  so  intoxi- 
cated as  to  destroy  their  ability  to  deliberate  and  exercise 
their  reason  and  judgment,  or  where  witnesses  are  sur- 
reptitiously called  before  the  jury,  and  permitted  to  de- 
tail the  principal  facts  or  any  other  matter  concerning 
which  all  or  any  considerable  portion  of  the  jury  may  tes- 
tify with  equal  knowledge,  by  having  seen  or  heard  the 
misconduct  which  is  alleged  to  have  occurred.  (Procuring 
by  jurors  of  dictionary  and  statutes  for  consultation  in  the 
jury  room.)— Harris  v.  State,  24  Neb.  803,  40  N.  W.  317. 

TESTIMONY  OF  GRAND  JURORS. 

California.  The  fact  that  a  person  was  called,  sworn,  and 
examined  as  a  witness  before  a  grand  jury  does  not  come 
within  the  rule  of  secrecy. — People  v.  Northey,  77  Cal.  618, 
19  P.  865. 

Nevada.  Grand  jurors  may  be  called  to  testify  to  what 
was  proved  before  them,  upon  a  trial  of  defendant  for  per- 
jury.— State   v.    Logan,    1    Nev.    509. 

Oregon.  Grand  jurors  are  competent  witnesses  to  con- 
tradict a  witness  in  a  murder  case  who  had  been  before 
them  at  the  time  defendant  was  indicted. — State  v.  Moran, 
15  Or.  262,  14  P.  419. 

Grand  jurors  are  competent  to  testify  to  contradictions 
between  the  testimony  of  a  witness  who  appeared  before 
them  in  the  examination  and  her  testimony  at  the  trial. 
—State  v.  Brown,  28  Or.  147,  41  P.  1042. 


COMPETENCY  OF  WITNESSES.  807 

A  grand  juror,  under  Sec.  1427,  L.  O.  L.,  cannot  be  ques- 
tioned for  anything  he  may  say  or  do  while  acting  as 
such,  except  for  perjury  of  which  he  may  be  guilty;  but 
to  permit  a  grand  juror  to  testify  that  defendant  was  ex- 
amined before  a  grand  jury  was  not  error. — State  v. 
Boysen,  76  Or.  48,  147  P.  927. 

The  foreman  of  a  grand  jury  may  testify  that  prosecut- 
ing witness  was  before  the  grand  jury,  and  that  it  returned 
a  true  bill  against  defendant. — State  v.  Boysen,  76  Or. 
48,  147   P.  927. 

Texas.  In  a  prosecution  for  murder,  it  was  not  error  to 
admit  the  testimony  of  grand  jurors  to  prove  that  the  tes- 
timony of  the  state's  witness  before  a  grand  jury  was  con- 
trary to  his  testimony  upon  the  trial. — Clanton  v.  State, 
13  Tex.  App.  139;  overruling  Ruby  v.  State,  9  Tex.  App. 
353. 

Utah.  A  grand  juror  may  testify  to  a  confession  of  de- 
fendant made  before  the  grand  jury,  under  the  provisions 
of  Sec.  4721,  Compiled  Laws  1907.— United  States  v.  Kirk- 
wood,  5  Utah  123,  13  P.  234. 

Foreman  of  grand  jury  may  testify  that  defendant  gave 
evidence  before  such  jury  as  to  an  offense  of  robbery  com- 
mitted upon  him  by  one  J.  S.,  and  that  at  the  time  of  its 
alleged  occurrence  he,  the  defendant,  was  running  a  gam- 
bling house  and  faro  game. — People  v.  Reggel,  8  Utah  21, 
28  P.  955. 


Arthi.k  115.* 
i'kokkssional.   com  m  ink  ations. 

No  legal  adviser  is  permitted,  whether  during 
or  after  the  termination  of  his  employment  as 
such,  unless  with  his  client's  express  consent,  to 
disclose  any  communication,  oral  or  documentary, 
made  to  him  as  such  legal  adviser,  by  or  on  be- 

•See  Note  at  end  of  chapter, 


808  COMPETENCY  OF  WITNESSES. 

half  of  his  client,  during,  in  the  course,  and  for 
the  purpose  of  his  employment,  whether  in  refer- 
ence to  any  matter  as  to  which  a  dispute  has 
arisen  or  otherwise,  or  to  disclose  any  advice 
given  by  him  to  his  client  during,  in  the  course, 
and  for  the  purpose  of  such  employment.  It  is 
immaterial  whether  the  client  is  or  is  not  a  party 
to  the  action  in  which  the  question  is  put  to  the 
legal  adviser. 

This  article  does  not  extend  to — 

(1)  Any  such  communication  as  aforesaid 
made  in  furtherance  of  any  criminal  purpose; (a) 

(2)  Any  fact  observed  by  any  legal  adviser,  in 
the  course  of  his  employment  as  such,  showing 
that  any  crime  or  fraud  has  been  committed  since 
the  commencement  of  his  employment,  whether 
his  attention  was  directed  to  such  fact  by  or  on 
behalf  of  his  client  or  not ; 

(3)  Any  fact  with  which  such  legal  adviser  be- 
came acquainted  otherwise  than  in  his  character 
as  such.  The  expression  "legal  adviser"  includes 
barristers  and  solicitors,  (b)   their  clerks,  (c)   and 


(a)  Follett  v.  Jefferyes,  1  Sim.  n.  s.  17;  Charlton  v. 
Coombes,  32  L.  J.  Ch.  284.  These  cases  put  the  rule  on  the 
principle,  that  the  furtherance  of  a  criminal  purpose  can 
never  be  a  part  of  a  legal  adviser's  business.  As  soon  as  a 
legal  adviser  takes  part  in  preparing  for  a  crime,  he  ceases 
to  act  as  a  lawyer  and  becomes  a  criminal, — a  conspirator 
or  accessory  as  the  case  may  be.  People  v.  Blakeley,  4  Par- 
ker, C.   R.   176;  Graham  v.   People,   63   Barb.   468. 

(b)  Wilson  v.  Rastall,  4  T.  R.  753.  As  to  interpreters,  id. 
756. 

(c)  Taylor  v.  Foster,  2  C.  &  P.  195;  Poote  v.  Hayne,  1  C. 
&  P.  545.  Quaere,  whether  licensed  conveyancers  are  within 
the  rule?  Parke,  B.,  in  Turquand  v.  Knight,  7  M.  &  W.  100, 
thought  not.  Special  pleaders  would  seem  to  be  on  the  same 
footing. 


COMPETENCY  OF  WITNESSES.  809 

interpreters  between  them  and  their  clients.  It 
does  not  include  officers  of  a  corporation  through 
whom  the  corporation  has  elected  to  make  state- 
ments, (d) 

Illustrations. 

(a)  A.  being  charged  with  embezzlement,  retains  B,  a  bar- 
rister, to  defend  him.  In  the  course  of  the  proceedings,  B 
observes  that  an  entry  has  been  made  in  A's  account  book, 
charging  A  with  the  sum  said  to  have  been  embezzled,  which 
entry  was  not  in  the  book  at  the  commencement  of  B's  em- 
ployment. 

This  being  a  fact  observed  by  B  in  the  course  of  his  em- 
ployment showing  that  a  fraud  has  been  committed  since 
the  commencement  of  the  proceedings,  is  not  protected  from 
disclosure  in  a  subsequent  action  by  A  against  the  prosecutor 
in  the  original  case  for  malicious  prosecution.1 

(b)  A  retains  B,  an  attorney,  to  prosecute  C  (whose  prop- 
erty he  had  fraudulently  acquired)  for  murder,  and  says, 
"It  is  not  proper  for  me  to  appear  in  the  prosecution  for 
fear  of  its  hurting  me  in  the  cause  coming  on  between  myself 
and  him;  but  I  do  not  care  if  I  give  £10,000  to  get  him 
hanged,  for  then  I  shall  be  easy  in  my  title  and  estate." 
This   communication    is   not   privileged.2 

PROFESSIONAL  COMMUNICATIONS. 
General  Rule. 
Arkansas.  The  protection  of  privilege  extends  to  every 
communication  which  the  client  makes  to  his  legal  adviser, 
for  the  purpose  of  professional  advice  or  aid  upon  the  sub- 
ject of  his  rights  and  liabilities. — Bobo  v.  Bryson,  21  Ark. 
387,   76  Am.   Dec.   406. 

California.  In  a  will  contest  case,  the  testimony  of  a 
stenographer  of  the  attorney  for  one  of  the  proponents, 
who  had  met  proponent  and  had  had  several  conversations 
with  him  and  had  formed  an  opinion  as  to  his  condition 
mentally  and  physically,  is  not  privileged  under  subdivi- 
sion 2,   Sec.   1881,   Code  Civ.   Proc,    which    provides  that 

(d)    Mayor    of    Swansea    v.    Quirk,    L.    R.    5    C.    P.    D.    106. 

1  Brown    v.    Foster,    1    H.   &    N.    736. 

2  Annesley    v.    Anerlesea,    17   S.   T.    122J-1324. 


810  COMPETENCY  OP  WITNESSES. 

an  attorney's  stenographer  cannot  be  examined,  without 
his  consent,  concerning  any  fact  learned  while  acting  in 
such  capacity. — Loveland's  Estate,  In  re,  162  Cal.  595, 
123  P.  801. 

Colorado.  If  a  person  in  respect  to  his  business  affairs, 
or  troubles  of  any  kind,  consults  with  an  attorney  in  his 
professional  capacity,  with  the  view  to  obtaining  profes- 
sional advice  or  assistance,  and  the  attorney  voluntarily 
permits  or  acquiesces  in  such  consultation,  then  the  pro- 
fessional employment  must  be  regarded  as  established, 
and  the  communication  made  by  the  client,  or  advice  given 
by  the  attorney,  under  -such  circumstances,  is  privileged. 
—Denver  Tramway  Co.  v.  Owens,  20  Colo.  107,  36  P.  848. 
Nebraska.  Letters  addressed  by  a  judgment  debtor  to  an 
attorney  for  the  purpose  of  employing  him  professionally 
to  procure  a  cancellation  of  the  judgment  are  inadmis- 
sible.—Nelson  v.  Becker,  32  Neb.  99,  48  N.  W.  962. 

A  communication  from  a  party  to  an  attorney  is  not 
privileged  when  the  relation  of  attorney  and  client  does 
not  exist  between  them. — Basye  v.  State,  45  Neb.  261,  63 
N.  W.  811. 

A  communication  to  an  attorney  is  not  privileged  where 
the  relation  of  attorney  and  client  does  not  exist. — Home 
Fire  Ins.  Co.  v.  Berg,  46  Neb.  600,  65  N.  W.  780. 
Oklahoma.  The  fact  that  no  fee  was  paid,  demanded  or 
charged,  or  that  there  was  a  disagreement  as  to  what 
fee  should  be  charged,  the  relation  of  attorney  and  client 
being  established,  communications  between  the  attorney 
and  client  are  privileged. — Evans  v.  State,  5  Okl.  Cr.  643, 
115  P.  809. 

Texas.  An  instruction  by  plaintiff  to  an  attorney  to  pre- 
sent his  claim  to  the  company  for  $100  for  injuries  to  his 
horses  is  a  privileged  communication.- — Ft.  Worth  &  D. 
C.  R.  Co.  v.  Lock,  30  Tex.  Civ.  App.  426.  70  S.  W.  456. 
Washington.  An  attorney  is  not  privileged  from  disclos- 
ing by  whom  he  was  employed,  or  the  terms  of  his  em- 
ployment.—Collins  v.  Hoffman,  62  Wash.  278,  113  P.  625. 
Unless  the  relationship  of  attorney  and  client  is  estab- 
lished, the  testimony  of  the  attorney,  that  he  was  fami- 


COMPETENCY  OF  WITNESSES.  811 

liar  with  the  handwriting  of  defendant  as  contained  in 
letters  from  defendant  to  the  attorney,  is  not  privileged. 
—State  v.  Miller,  80  Wash.  75,  141  P.  293. 

Communications  After  Termination  of  Relationship. 
Colorado.  An  attorney  is  employed  in  his  professional 
capacity  when  he  is  voluntarily  listening  to  his  client's  pre- 
liminary statement,  or  giving  advice  thereon,  even  though 
he  should,  after  hearing  such  statement,  decline  to  be  re- 
tained further,  or  the  client,  after  hearing  the  attorney's 
advice,  decline  to  further  employ  him;  a  breach  of  pro- 
fessional relations  between  attorney  and  client,  does  .not 
remove  the  seal  of  silence  from  the  lips  of  the  attorney 
in  respect  to  matters  communicated  in  confidence. — Den- 
ver Tramway  Co.  v.  Owens,  20  Colo.  107,  36  P.  848. 
Oregon.  After  the  relation  of  attorney  and  client  has 
terminated,  a  letter  written  to  the  attorney  and  contain- 
ing an  indirect  threat  of  forgery,  is  not  privileged. — 
Young's  Estate,  In  re,  59  Or.  348,  116  P.  95. 
Pennsylvania.  Reports  from  an  agent  of  a  railroad  com- 
pany to  the  main  department  made  not  in  the  ordinary 
course  of  business  but  for  the  special  purpose  of  resisting 
plaintiff's  claim,  so  that  if  suit  were  brought  it  might  be 
placed  in  counsel's  hands  to  guide  them  were  in  effect 
made  to  counsel  and  come  under  the  rule  of  privilege 
as  to  professional  communications. — Davenport  Co.  v. 
Pennsylvania  R.  Co.,  166  Pa.  480,  31  Atl.  245. 

Attorney  Acting  For  Both  Parties. 
California.  An  attorney  acting  for  both  husband  and  wife 
in  drawing  a  declaration  of  homestead  may  testify  as  to 
whether  the  recital  in  the  declaration  of  homestead  was 
explained  to  the  wife,  if  she  understood  it,  what  explana- 
tion was  given,  and  what  she  knew  about  the  matter, 
where  the  action  does  not  concern  strangers,  but  Is  be- 
tween the  widow  and  the  deceased  husband's  legatee. — 
Bauer,  Estate  of,  79  Cal.  304,  21  P.  759. 
Kansas.  Communications  made  to  an  attorney  who  is  act- 
ing for  both  parties  to  the  action  and  in  their  presence, 
cannot  be  regarded  as  privileged.— Sparks  v.  Sparks,  61 
Kan.  195,  ?>2   P.  892. 


812  COMPETENCY  OF  WITNESSES. 

Montana.  Where  a  witness  is  asked  to  relate  what  took 
place  at  a  certain  time  between  plaintiff  and  defendant 
while  he  was  acting  as  attorney  for  both,  such  testimony 
is  not  privileged. — Lenahan  v.  Casey,  46  Mont.  367,  128  P. 
601. 

Illegal   Matters. 

California.  Communications  made  to  his  attorney  by  a 
client,  of  his  intention  or  arrangement  to  perform  some 
illegal  act  in  the  future,  are  not  privileged. — McDonough, 
ex  parte,  170  Cal.  230,  149  P.  566. 

Oklahoma.  Communications  between  attorney  and  client 
which  relate  to  the  commission  of  a  crime,  are  not  privi- 
leged.—Morris  v.   State,   6  Okl.  Cr.   29,   115  P.   1030. 

In  Presence  of  Third  Persons. 

Communications  made  in  the  presence  of  third  parties 
between  attorney  and  client,  are  not  privileged  as  to  such 
third  parties,  who  may  give  in  evidence  what  they  have 
heard. — Alpha  Realty  &  Rental  Co.  v.  Randolph,  23  Colo. 
App.  69,  127  P.  245;  Denver  Tramway  Co.  v.  Owens,  20 
Colo.  107,  36  P.  848;  State  v.  Perry,  4  Ida.  224,  38  P.  655; 
Basye  v.  State,  45  Neb.  261,  63  N.  W.  811;  Walker  v. 
State,  19  Tex.  App.  176. 

Arkansas.  The  rule  preventing  an  attorney  from  disclos- 
ing communications  made  to  him  by  his  client,  must  be 
strictly  construed;  and  statements  made  by  the  client  to 
his  attorney  to  be  communicated  to  third  parties,  are  not 
privileged.— Vittitow  v.  Burnett,  112  Ark.  277,  165  S.  W. 
625. 

Nebraska.  A  third  person  who  heard  a  communication 
made  by  a  client  to  any  attorney  may  relate  the  same. — 
Basye  v.  State,  45  Neb.  261,  63  N.  W.  811. 

Attorney   As   Scrivener   or    Drawer   of   Will. 

Communications  between  the  testator  and  his  attorney 
in  reference  to  the  preparation  of  a  will,  are  not  privi- 
'3/el  after  the  death  of  the  testator. — Shapter's  Estate, 
In  re,  35  Colo.  578,  85  P.  688;  Black  v.  Funk,  93  Kan.  60, 
143  P.  420;   Young's  Estate,  33  Utah  382,  94  P.  731. 


COMPETENCY  OF  WITNESSES.  813 

Where  the  attorney  acts  as  a  mere  scrivener  for  a 
party,  and  his  advice  is  not  asked  as  to  any  legal  matters, 
communications  between  them  at  the  time  are  not  privi- 
leged.—Delger  v.  Jacobs,  19  Cal.  App.  197,  125  P.  258; 
Childress  v.  State,  (Tex.  Civ.  App.),  148  P.  843. 
California.  An  attorney  who  was  made  a  witness  to  a 
will  he  had  drawn  for  deceased,  is  thereby  made  compe- 
tent, by  waiver  of  the  testator,  to  testify  as  to  declarations 
made  him  by  deceased,  and  the  instructions  given  him, 
and  the  occurrences  at  the  interview  immediately  pre- 
ceding the  drafting  of  the  instrument. — Mullin's  Estate, 
In  re,  110  Cal.  252,  42  P.  645. 

Where  an  attorney  was  requested  by  grantor  to  draw 
a  deed  and  take  the  acknowledgment  of  grantor  and  his 
wife,  the  relationship  of  attorney  and  client  does  not 
exist,  and  communications  between  the  attorney  and  the 
wife  are  not  privileged. — Ferguson  v.  Ash,  27  Cal.  App. 
375,   150  P.  657. 

Colorado.  Privileged  communications  between  attorney 
and  client  do  not  include  declarations  made  to  one  to 
whom  defendant  applied  to  have  a  mortgage  prepared, 
when  the  person  to  whom  application  was  made  was  not 
consulted  as  an  attorney  but  was  merely  employed  as  a 
scrivener,  and  it  did  not  appear  from  the  evidence  that 
such  person  was  an  attorney-at-law. — Machette  v.  Wan- 
less,  2  Colo.  169. 

Washington.  Communications  made  to  an  attorney  who 
drew  a  will  at  the  request  of  the  principal  beneficiaries 
under  the  will,  are  not  privileged,  since  he  was  acting  for 
the  testatrix.— Beck's  Estate,  In  re,  79  Wash.  331,  140 
P.  340. 

Production  of  Papers. 
Oklahoma.  It  is  a  well  established  exception  to  the  gen- 
eral rule  as  to  privileged  communications  between  attor- 
ney and  client,  that  the  attorney  can  be  compelled  to 
produce  in  evidence  any  paper  or  record  in  his  possession 
belonging  to  his  client  which  the  client  himself  can  be 
compelled  to  produce;  for  example,  papers  where  the 
knowledge  of  their  existence  or  contents  is  accessible  to 
others  or  to  the  public. — Pearson  v.  Yoder,  39  Okl.  105, 
134  P.  421. 


814  COMPETENCY  OF  WITNESSES. 

Communications  which  frequently  include  the  exchange 
and  possession  of  documents  and  papers,  between  attor- 
ney and  client,  during  and  by  reason  of  their  relation  as 
such,  made  in  the  confidence  and  for  the  purpose  of  en- 
abling the  attorney  to  perform  his  professional  duty  in 
regard  to  the  matter  communicated,  are  privileged,  upon 
the  grounds  of  public  policy. — Pearson  v.  Yoder,  39  Okl. 
105,  134  P.  421. 

Burden  of  Proof. 
California.  The  burden  is  upon  the  party  seeking  to  sup- 
press the  evidence  to  show  that  it  is  within  the  terms  of 
the  statute  relating  to  confidential  and  privileged  com- 
munications.— Sharon  v.  Sharon,  79  Cal.  633,  22  P.  26. 
Idaho.  When  an  attorney  i3  called  as  a  witness,  and  de- 
clines to  answer  a  question  or  produce  letters  or  docu- 
ments, on  the  ground  that  the  same  are  privileged  under 
the  provisions  of  subdivision  2,  §  5958,  Rev.  St.  1887,  the 
burden  is  upon  him  to  show  sufficient  facts  and  circum- 
stances to  establish  the  general  privileged  character  of 
the  communications  or  documents.— Niday,  In  re,  15  Ida. 
559,   98   P.   845. 

Waiver  of  Privilege. 
Colorado.  The  statute  disqualifying  an  attorney  from 
giving  testimony  as  to  confidential  communications  of 
the  client,  has  no  application  when  the  client  himself  dis- 
closes the  transaction  in  question. — Sholine  v.  Harris,  22 
Colo.  App.  63,  123  P.  330;  Fearnley  v.  Fearnley,  44  Colo. 
417,   98   P.   819. 

Oregon.  Where  plaintiff  is  herself  a  witness,  she  cannot 
object  to  her  attorney's  testimony  on  the  same  subject 
upon  the  ground  that  such  testimony  was  privileged  as 
between  attorney  and  client. — Gerlinger  v.  Frank,  74  Or. 
517,   145  P.   1069. 

NOTE    XLIII. 
(To  Article  115.) 

This  article  sums  up  the  rule  as  to  professional  communi- 
cations, every  part  of  which  is  explained  at  great  length, 
and  to  much  the  same  effect.  1  Ph.  Ev.  105-122;  T.  E.  ss. 
832-839;  Best,  s.  581.  It  is  so  well  established  and  so  plain 
in  itself  that  it  requires  only  negative  illustrations.  It  is 
stated  at  length  by  Lord  Brougham  in  Greenough  v.  Gaskell, 
1   M.   &  K.   98. 


COMPETENCY  OF  WITNESSES.  815 

Article  116. 
confidential  communications  with  legal  advisers. 

No  one  can  be  compelled  to  disclose  to  the  Court 
any  communication  between  himself  and  his  legal 
adviser,  which  his  legal  adviser  could  not  disclose 
without  his  permission,  although  it  may  have  been 
made  before  any  dispute  arose  as  to  the  matter 
referred  to. (a) 

PRIVILEGE  OF  CLIENT. 
Kansas.  Any  communication  which  an  attorney  is  pre- 
cluded from  disclosing,  his  client  cannot  be  compelled  to 
disclose,  against  his  objection  of  privilege. — State  v. 
White,  19  Kan.  445,  27  Am.  St.  Rep.  137. 
Nebraska.  Statements  made  by  one  to  an  attorney  in  the 
capacity  of  a  client  communicating  with  his  counsel  is  a 
privileged  communication,  which  cannot  be  lawfully 
divulged  by  counsel,  nor  drawn  from  the  witness  on  cross- 
examination  without  his  consent.  (Statements  made  by 
witness  to  an  attorney  at  a  time  when  witness  and  de- 
fendant were  jointly  accused  and  were  then  acting  in 
conjunction  preparing  for  their  defense,  excluded,  though 
witness  afterwards  declined  to  join  defendant  in  the  de- 
fense to  the  accusation  and  turned  state's  evidence.)  — 
Jahnke  v.  State,  68  Neb.  154,  94  N.  W.  158. 

Article  117.* 
cleriiv-mkn  and  .mkd1cal  men. 

Medical  men  (a)  and  [probably]  clergymen 
may  be  compelled  to  disclose  communications 
made  to  them  in  professional  confidence. 

(a)  Minet  v.  Morgan,  L.  R.  8  Oh.  App.  361,  reviewing  all 
the  cases,  and  adopting  the  explanation  given  in  Pearse  v. 
Pearse,  1  De  G.  &  S.  18-31.  of  Radcliffe  v.  Fursman,  2  Br.  P. 
C.  514.  A  recent  illustration  will  be  found  in  Mayor  of 
Bristol    v.    Cox,    26    Ch.    D.    678. 

(a)  Duchess  of  Kingston's  Case,  20  S.  T.  572-573.  As  to 
clergymen,    see   Appendix,    Note    XLIV. 

*See   Note  at  end   of  article. 


S16  COMPETENCY  OF  WITNESSES. 

COMMUNICATIONS  TO  CLERGY. 
Arkansas.  Communications  between  a  priest  or  other 
minister  of  the  gospel,  in  order  to  be  privileged,  must  be 
made  to  such  priest  or  minister  in  his  professional  capa- 
city and  in  the  course  of  discipline  enjoined  by  the  prac- 
tice of  his  church. — Alford  v.  Johnson,  103  Ark.  236,  146 
S.  W.   516. 

Colorado.  Defendant  cannot  claim  as  privileged,  com- 
munications made  to  a  chief  of  police  voluntarily  and 
without  threats  or  promises,  after  having  sent  to  the  chief 
word  through  a  Methodist  minister  who  had  visited  him, 
that  he  wished  to  make  such  statements,  and  there  was 
no  evidence  that  defendant  was  a  Methodist,  or  that  the 
minister  was  his  spiritual  adviser. — Mitsunaga  v.  People, 
54  Colo.  102,  129  P.  241. 

Nebraska.  A  communication  to  a  minister  of  the  gos- 
pel or  priest  is  not  privileged,  where  it  is  shown  that  it 
was  not  made  in  confidence  of  the  relation,  or  was  not  to 
be  kept  as  a  secret.— Hills  v.  State,  61  Neb.  589,  85  N. 
W.   836. 

COMMUNICATIONS  TO   PHYSICIANS. 

Arkansas.  A  physician  who  visits  the  patient  at  the  re- 
quest of  the  latter's  regular  physician,  but  not  at  the  re- 
quest of  the  patient,  for  the  purpose  of  making  a  diagnosis 
of  the  case,  comes  within  the  statute  prohibiting  him 
from  disclosing  any  knowledge  of  the  patient's  condition 
thus  acquired,  without  the  consent  of  the  patient's  repre- 
sentatives.— Mutual  Life  Insurance  Co.  v.  Owen,  111  Ark. 
554,   164  S.  W.  720. 

California.  In  a  will  contest  a  physician  will  not  be  al- 
lowed to  testify  that  he  prescribed  for  deceased  for  mental 
trouble.— Flint,  In  re,  100  Cal.  391,  34  P.  863. 

In  a  prosecution  for  murder,  where  the  defense  is  in- 
sanity, a  physician  may  be  examined  as  to  diseases  for 
which  he  has  treated  defendant. — People  v.  Lane,  101  Cal. 
513,  36  P.  16. 

The  statute  preventing  the  disclosure  of  confidential 
communications  to  physicians  does  not  apply  to  criminal 


COMPETENCY  OF  WITNESSES.  817 

cases.— People  v.  Lane,  101  Cal.  513.  36  P.  16;  People  v. 
West,  106  Cal.  89,  39  P.  207. 

A  physician  who  attended  deceased  and  witnessed  his 
will  is  not  barred  from  testifying  to  his  mental  capacity. 
— Mullin.  In  re,  110  Cal.  252,  42  P.  645. 
Kansas.  Statements  by  a  brakeman  to  a  physician  called 
to  dress  and  attend  to  his  wound,  with  respect  to  the 
position  he  occupied  immediately  preceding  the  accident 
are  not  confidential  or  privileged. — Kansas  City,  Ft.  S. 
&  M.  R.  Co.  v.  Murray,  55  Kan.  336,  40  P.  646. 
Nebraska.  The  testimony  of  a  physician  who  attended 
defendant  and  dressed  his  wounds,  cannot,  over  objection 
of  defendant,  be  admitted.— Freeburg  v.  State,  92  Neb.  346, 
138  N.  W.  143. 

North  Dakota.  The  object  of  the  statute,  (Sec.  7304,  R. 
C.  1905).  which  provides  that  a  "physician  or  surgeon, 
cannot,  without  the  consent  of  his  patient,  be  examined 
as  to  any  information  acquired  in  attending  the  patient 
which  was  necessary  to  enable  him  to  prescribe  or  act 
for  the  patient."  was  intended  to  inspire  confidence  in 
the  patient  and  encourage  him  in  making  a  full  disclos- 
ure to  the  physician  of  his  ailments,  and  prevent  the  phy- 
sician from  making  known  to  the  curious  such  ailments. — 
Booren   v.   McWilliams.   26   N.   D.   558,   145  N.  W.   410. 

Privileged   Facts. 

Colorado.  Under  Rev.  St.  1908.  Sec.  7274,  (Courtrighfs 
Colo.  Stat.),  it  was  not  error  to  permit  a  physician  who 
attended  defendant,  who  was  suffering  from  a  gunshot 
wound,  to  testify  that  defendant  refused  to  allow  him 
to  remove  the  bullet,  or  to  tell  him  how  he  received  the 
wound,  such  testimony  not  being  necessary  information 
to  enable  the  physician  to  prescribe  or  to  act  for  his 
patient.-  Cook   v.   People,   60   Colo.   263.    153    P.    214. 

Kansas.  The  time,  manner,  and  circumstances  of  a  street 
car  accident,  were  not  confidential  facts  which  could  be 
claimed  as  privileged  communications  between  physician 
and  patient. — Armstrong  v.  Topeka  Ry.  Co.,  93  Kan.  493, 
144   P.   S47. 


818  COMPETENCY  OF  WITNESSES. 

Nebraska.  The  testimony  of  physicians  who  testify  as 
to  the  condition  and  the  cause  of  death  of  one  who  has 
died  from  the  effects  of  an  abortion  criminally  produced, 
is  not  privileged  under  the  laws  of  this  state.— Thrasher 
v.   State,   92  Neb.   110,  138  N.  W.   120. 

Waiver  of   Privilege. 

Arkansas.  An  assured  may,  by  his  written  application  for 
insurance,  signed  by  him,  waive  his  right  to  object  to  the 
evidence  of  his  physician  relative  to  information  obtained 
by  him  while  attending  assured  in  the  character  of  a 
physician. — National  Annuity  Ass'n  v.  McCall,  103  Ark. 
201,   146   S.  W.   125. 

In  an  action  to  recover  upon  an  accident  insurance  pol- 
icy, the  fact  that  plaintiff  makes  no  issue  upon  which  it 
is  necessary  for  the  introduction  of  testimony  by  her  phy- 
sicians and  merely  mentions,  in  her  complaint,  the  al- 
leged cause  of  the  accident,  does  not  open  the  way  for 
the  introduction  of  testimony  which  it  was  her  privilege, 
under  the  statute,  to  exclude. — Maryland  Casualty  Co.  v. 
Maloney,  119  Ark.  434,  178  S.  W.  387;  Mo.  &  N.  A.  R.  Co. 
v.  Daniels!  98  Ark.  352,  136  S.  W.  651;  K.  C.  So.  Ry.  Co.  v. 
Miller,  117  Ark.  396,  175  S.  W.  1164. 

Where  the  policy  of  insurance  does  not  contain  a  pro- 
vision of  waiver  of  the  privilege  of  the  examining  phy- 
sician to  testify,  the  introduction  in  evidence  of  the  cer- 
tificate of  death  given  by  the  physician  of  the  insured, 
does  not  waive  the  privilege  of  the  statute  against  phy- 
sicians testifying  concerning  information  received  in  the 
course  of  professional  employment,  the  certificate  itself 
not  being  introduced  in  evidence  by  plaintiff  for  the  pur- 
pose of  establishing  the  truth  of  its  contents. — Fidelity 
&  Cas.  Co.  v.  Meyer,  106  Ark.  91,  152  S.  W.  995. 

California.  In  making  an  attending  physician  a  witness 
to  his  will,  the  deceased  waived  the  privilege  allowed  a 
patient  to  have  his  disclosures  kept  secret,  and  invited 
a  full  and  proper  examination  of  the  matters  and  facts 
upon  which  the  lips  of  the  physician  would  otherwise 
have  been  sealed.  (Testimony  as  to  mental  capacity.) 
— Mullin's  Estate,  In  re,  110  Cal.  252,  42  P.  645. 


COMPETENCY  OF  WITNESSES.  819 

Idaho.  In  an  action  for  damages  for  personal  injuries, 
plaintiff,  by  calling  her  regular  physician  as  a  witness, 
did  not  thereby  waive  the  privilege  of  objecting  to  the 
testimony  of  another  physician  who  had  examined  her 
injuries  and  was  called  by  the  defendant. — Jones  v.  City 
of  Caldwell,  20  Ida.  5,  116  P.  110. 

Kansas.  After  the  decedent's  death,  her  heirs  at  law  or 
personal  representatives  may  waive  the  privilege  dece- 
dent may  have  had  as  to  communications  with  her  phy- 
sician.—Fish  v.  Poorman,  85  Kan.  237,  116  P.  898. 
Nebraska.  Plaintiff,  having  testified  in  part  as  to  a  confi- 
dential communication  with  her  physician,  the  whole  of  the 
"same  subject"  may  be  inquired  into  by  the  other  party 
and  it  is  within  the  discretion  of  the  trial  court,  subject 
to  review  upon  appeal  in  case  of  clear  abuse  of  such 
discretion,  to  determine  whether  the  evidence  offered  is 
within  the  same  subject. — Struble  v.  Village  of  De  Witt, 
89  Neb.  726,  132  N.  W.   124. 

Oklahoma.  Plaintiff,  having  offered  himself  as  a  witness 
and  testified  in  regard  to  his  injuries,  thereby  waives  the 
privilege  of  objecting  to  the  testimony  of  the  physician 
who  examined  him. — Fulsom-Morris  Coal  &  Mining  Co.  v. 
Mitchell,   37   Okl.   575,   132  P.   1103. 

Oregon.  When  plaintiff  testified  on  the  subject  of  her  in- 
juries, she  waived  the  privilege  of  objecting  to  the  testi- 
mony of  her  physician  on  the  same  subject  when  called 
by  the  defendant,  she  not  having  called  him,  though  he 
had  examined  her  injuries. — Forrest  v.  Portland  Ry., 
Light  &  Power  Co.,  64  Or.  240,  129  P.  1048. 

NOTE  XLIV. 
(To  Article  117.) 
The  question  whether  clergymen,  and  particularly  whether 
Roman  Catholic  priests,  can  be  compelled  to  disclose  con- 
fessions made  to  them  professionally  has  never  been  sol- 
emnly decided  in  England,  though  it  is  stated  by  the  text 
writers  that  they  can.  [1  Greenl.  Kv..  §  247.]  See  1  Ph. 
Dr.  18»;  T.  E.  ss.  837-838;  R.  N.  P.  190;  Starkle,  40.  The 
question  is  discussed  at  some  length  in  Best,  ss.  683-584;  and 
a  pamphlet  was  written  to  maintain  the  existence  of  the 
privilege  by  Mr,  Baddeley  in  1865.  Mr.  Best  shows  clearly 
that  none  of  the  decided  cases  are  directly  In  point,  except 
Butler    v.    Moore     (MacNally,    253-254),    and    possibly    R.     v. 


820  COMPETENCY  OF  WITNESSES. 


Sparkes,  which  was  cited  by  Garrow  in  arguing  Du  Barre  v. 
Livette  before  Lord  Kenyon  (1  Pea.  108).  The  report  of  his 
argument  is  in  these  words:  "The  prisoner  being  a  Papist, 
had  made  a  confession  before  a  Protestant  clergyman  of  the 
crime  for  which  he  was  indicted;  and  that  confession  was 
permitted  to  be  given  in  evidence  on  the  trial"  (before  Buller, 
J.),  "and  he  was  convicted  and  executed."  The  report  is  of 
no  value,  resting  as  it  does  on  Peake's  note  of  Garrow's 
statement  of  a  case  in  which  he  was  probably  not  personally 
concerned;  and  it  does  not  appear  how  the  objection  was 
taken,  or  whether  the  matter  was  ever  argued.  Lord  Ken- 
yon, however,  is  said  to  have  observed:  "I  should  have 
paused    before    I    admitted    the    evidence    there    admitted." 

Mr.  Baddeley's  argument  is  in  a  few  words,  that  the  privi- 
lege must  have  been  recognized  when  the  Roman  Catholic 
religion  was  established  by  law,  and  that  it  has  never  been 
taken   away. 

I  think  that  the  modern  Law  of  Evidence  is  not  so  old 
as  the  Reformation,  but  has  grown  up  by  the  practice  of 
the  courts,  and  by  decisions  in  the  course  of  the  last  two 
centuries.  It  came  into  existence  at  a  time  when  excep- 
tions in  favor  of  auricular  confessions  to  Roman  Catholic 
priests  were  not  likely  to  be  made.  The  general  rule  is 
that  every  person  must  testify  to  what  he  knows.  An  ex- 
ception to  the  general  rule  has  been  established  in  regard  to 
legal  advisers,  but  there  is  nothing  to  show  that  it  extends 
to  clergymen,  and  it  is  usually  so  stated  as  not  to  include 
them.  This  is  the  ground  on  which  the  Irish  Master  of  the 
Rolls  (Sir  Michael  Smith)  decided  the  case  of  Butler  v. 
Moore  in  1802  (MacNally,  Ev.  253-254).  It  was  a  demurrer 
to  a  rule  to  administer  interrogatories  to  a  Roman  Catholic 
priest  as  to  matter  which  he  said  he  knew,  if  at  all,  pro- 
fessionally only.  The  Judge  said,  "It  was  the  undoubted 
legal  constitutional  right  of  every  subject  of  the  realm  who 
has  a  cause  depending,  to  call  upon  a  fellow-subject  to  testify 
what  he  may  know  of  the  matters  in  issue;  and  every  man 
is  bound  to  make  the  discovery,  unless  specially  exempted 
and  protected  by  law.  It  was  candidly  admitted,  that  no 
special  exemption  could  be  shown  in  the  present  instance, 
and  analogous  cases  and  principles  alone  were  relied  upon." 
The  analogy,  however,  was  not  considered  sufficiently  strong. 

Several  judges  have,  for  obvious  reasons,  expressed  the 
strongest  disinclination  to  compel  such  a  disclosure.  Thus 
Best,  C.  J.,  said,  "I,  for  one,  will  never  compel  a  clergyman 
to  disclose  communications  made  to  him  by  a  prisoner;  but 
if  he  chooses  to  disclose  them  I  shall  receive  them  in  evi- 
dence" (obiter,  in  Broad  v.  Pitt,  3  C.  &  P.  518).  Alderson, 
B.,  thought  (rather  it  would  seem  as  a  matter  of  good  feel- 
ing than  as  a  matter  of  positive  law)  that  such  evidence 
should  not  be  given.     R.   v.   Griffin,   6  Cox,  Cr.   Ca.   219. 


COMPETENCY  OF  WITNESSES.  821 

Article  118. 
production  of  title-deeds  of  witness  not  a  party. 

No  witness  who  is  not  a  party  to  a  suit  can  be 
compelled  to  produce  his  title-deeds  to  any  prop- 
erty, (a)  or  any  document  the  production  of  which 
might  tend  to  criminate  him,  or  expose  him  to  any 
penalty  or  forfeiture  ;(b)  but  a  witness  is  not  en- 
titled to  refuse  to  produce  a  document  in  his  pos- 
session only  because  its  production  may  expose 
him  to  a  civil  action,  (c)  or  because  he  has  a  lien 
upon  it.  (d) 

No  bank  is  compellable  to  produce  the  books  of 
such  bank,  except  in  the  case  provided  for  in  arti- 
cle 37.  (e) 

PRODUCTION  OF  PRIVILEGED  DOCUMENTS. 

Arkansas.  While  a  circuit  judge  has  power  to  order  the 
election  commissioners  to  produce  poll  books  to  be  used 
as  evidence,  he  cannot  order  them  taken  out  of  their  cus- 
tody.— Bowden  v.  Webb,  116  Ark.  310,  173  S.  W.  181. 

(a)  Pickering  v.  Noyes,  1  B.  &  C.  263;  Adams  v.  Lloyd, 
3    H.   &   N.   351. 

(b)  Whitaker  v.  Izod,  2  Tau.  115;  [1  Greenl.  Ev.,  §§  451, 
453]. 

(c)  Doe  v.  Date,   3  Q.   B.   609,   618;    [1  Greenl.  Ev.,   §   452]. 

(d)  Hope  v.  Liddell,  7  De  G.  M.  &  G.  331;  Hunter  v.  Leath- 
ley,  10  B.  &  C.  858;  Brassington  v.  Brassington,  1  Si.  &  Stu. 
455.  Jt  has  been  doubted  whether  production  may  not  be 
refused  on  the  ground  of  a  lien  as  against  the  party  requir- 
ing the  production.  This  is  suggested  in  Brassington  v. 
Brassington,  and  was  acted  upon  by  Lord  Dennian,  in  Kemp 
v.  King,  2  Mo.  &  Ko.  437;  but  it  seems  to  be  opposed  to 
Hunter  v.  Leathley,  in  which  a  broker  who  had  a  lien  on  a 
policy  for  premiums  advanced  was  compelled  to  produce  it  in 
an  action  against  the  underwriter  by  the  assured  who  had 
created  the  lien.  See  Ley  v.  Barlow  (Judgt.  of  Parke,  B.), 
1    Ex.    801. 

(.•)    12  &   43   Vict.  c.   11.     [This  is  peculiar  to  English  law.] 


822  COMPETENCY  OF  WITNESSES. 

Federal.  The  fact  that  certain  drawings  necessary  to  be 
used  in  evidence  contained  a  secret  method  of  manufac- 
turing a  rail,  constituting  a  trade  secret,  was  not  sufficient 
to  justify  its  owners  from  producing  it. — Johnson  Steel 
Co.  v.  North  Branch  Steel  Co.,  48  Fed.  191. 
United  States.  A  collector  of  internal  revenue  cannot  be 
compelled  to  produce  reports,  papers,  documents  or  exemp- 
lifications in  his  office,  or  copies  of  the  same,  or  to  permit 
copies  thereof  to  be  made,  or  to  testify  as  to  their  contents, 
except  as  may  be  directed  by  the  Secretary  of  the  Treas- 
ury.—Boske  v.  Comingore,  177  U.  S.  459,  44  L.  Ed.  846, 
20  Sup.   Ct.   Rep.  701. 

Article  119. 

production  of  documents  which  another  person,   having 

possession.  could  refuse  to  produce. 

No  solicitor,  (a)  trustee,  or  mortgagee  can  be 
compelled  to  produce  (except  for  the  purpose  of 
identification)  documents  in  his  possession  as 
such,  which  his  client,  cestui  que  trust,  or  mort- 
gagor would  be  entitled  to  refuse  to  produce  if 
they  were  in  his  possession ;  nor  can  any  one  who 
is  entitled  to  refuse  to  produce  a  document  be 
compelled  to  give  oral  evidence  of  its  contents,  (b) 

PRODUCTION   OF  ANOTHER'S   DOCUMENTS. 

An  attorney  on  the  trial  of  a  cause  is  not  obliged  to 
produce  a  paper  which  his  client  has  intrusted  to  him  as 
counsel  in  the  case,  and  in  professional  confidence. — 
Lynde  v.  Judd,  3  Day  (Conn.)  499;  Jackson  v.  Burris,  14 
Johns.  (N.  Y.)  391;  Durkee  v.  Leland,  4  Vt.  612. 

(a)  Volant  v.  Soyer,  13  C.  B.  231;  Phelps  v.  Prew,  3  E.  & 
B.    431;    [1    Greenl.    Ev.,    §    24C]. 

(b)  Davies  v.  Waters,  9  M.  &  W.  608;  Few  v.  Guppy,  13 
Beav.    454. 


COMPETENCY  OF  WITNESSES.  823 

Massachusetts.  Where  a  practitioner  of  the  court  held  a 
paper  delivered  to  him  by  his  client  to  be  used  in  defend- 
ing a  pending  action,  which  the  grand  jury  desired  to  see, 
the  court  held  that  he  was  not  bound  to  produce  it.— 
Anonymous,   8   Mass.   370. 

In  a  suit  on  a  note,  a  third  party  claiming  to  be  the 
owner  and  in  possession  of  it  cannot  be  compelled  to 
produce  it  for  use  as  evidence  by  plaintiff,  since  this 
would  in  effect  be  a  determination  by  the  judge  of  the 
rights  of  witness  to  such  note  without  his  being  made  a 
party.— Cobb  v.  Tirrell,  141  Mass.  459,  5  N.  E.  828. 
Vermont.  The  court  of  chancery  has  power  to  compel  a 
party  to  discover  and  produce  any  book  or  writing  which  is 
in  his  possession  or  power  and  which  is  material  for  the 
establishment  of  the  issues  to  be  established  by  the  orator. 
—Vermont  Farm  Mach.  Co.  v.  Batchelder,  68  Vt.  430,  35 
Atl.  378. 

Federal.  If  a  witness  cannot  claim  immunity  for  himself 
from  producing  documents  he  cannot  claim  it  for  others. 
(Officer  of  corporation  refusing  to  produce  papers  on 
ground  that  they  would  incriminate  corporation.) — Peas- 
ley.  In  re.  44  Fed.  271. 

If  documents  are  not  privileged  while  in  the  hands  of 
a  party  he  cannot  make  them  privileged  by  handing  them 
to  his  counsel. — Edison  Elec.  Co.  v.  United  States  Elec. 
Co.,   44  Fed.   294. 


-  Akth  lb   120. 
UII.NKss    not    TO    BE   (KMI'KU.KIi   To    tN  CHIMIN  ATE    HIMSELF. 

No  one  is  bound  to  answer  any  question  if  the 
answer  thereto  would,  in  the  opinion  of  the  judge, 
have  a  tendency  to  expose  the  witness  [or  the  wife 
or  husband  of  the  witness]  to  any  criminal 
charge,  or  to  any  penalty  or  forfeiture  which  the 
judge  regards  as  reasonably  likely  to  be  preferred 


824  COMPETENCY  OF  WITNESSES. 

or  sued  for; (a)  but  no  one  is  excused  from  an- 
swering any  question  only  because  the  answer 
may  establish  or  tend  to  establish  that  he  owes 
a  debt,  or  is  otherwise  liable  to  any  civil  suit, 
either  at  the  instance  of  the  Crown  or  of  any  other 
person. (b) 

Illustrations. 

(a)  [Petitioner  in  habeas  corpus  proceedings,  being  called 
as  a  witness  on  a  preliminary  examination  of  another  per- 
son for  having  allowed  petitioner  to  be  registered  as  a  voter 
knowing  that  he  was  not  entitled  to  such  registration,  was 
asked  the  following  questions,  among  others:  Q.  Did  you 
have  any  conversation  with  Mr.  Steinberger  (the  defendant) 
on  the  3d  day  of  last  October  respecting  your  going  and  pro- 
curing yourself  to  be  placed  upon  the  great  register  of  this 
county?  Q.  Or  the  precinct  register  01  this  city  and  county? 
Q.  Did  you  register  or  procure  your  name  to  be  placed  upon 
the  precinct  register  of  the  1st  precinct  of  the  43d  assembly 
district  on  the  3d  of  last  October?  Q.  Were  you  present  at 
the  Baldwin  Hotel  with  Mr.  Steinberger  on  the  3d  day  of 
October?  Q.  At  Mr.  Steinberger's  direction,  did  the  clerk  of 
the  Baldwin  Hotel  furnish  you  with  a  key  to  a  certain  room 
in    the  hotel? 

The  witness  refused  to  answer  any  of  these  questions,  and 
was  committed  for  contempt. 

Held,  that  though  the  answers  to  the  questions  might  tend 
to    incriminate    him,    yet    as    the    statute    expressly    provided 

(a)  R.  v.  Boyes,  1  B.  &  S.  330;  [4  Wigmore  Ev.,  §  2250  et 
seq.].  As  to  husbands  and  wives,  see  I  Hale,  P.  C.  301;  R. 
v.  Cliviger,  2  T.  R.  263;  Cartwright  v.  Green,  8  Ve.  405;  R. 
v.  Bathwick,  2  B.  &  Ad.  639;  R.  v.'  All  Saints,  Worcester, 
6  M.  &  S.  19  4.  These  cases  show  that  even  under  the  old 
law  which  made  the  parties  and  their  husbands  and  wives 
incompetent  witnesses,  a  wife  was  not  incompetent  to  prove 
matter  which  might  tend  to  criminate  her  husband.  R.  v. 
Cliviger  assumes  that  she  was,  and  was  to  that  extent  over- 
ruled. As  to  the  later  law,  see  R.  v.  Halliday,  Bell,  257.  The 
cases,  however,  do  not  decide  that  if  the  wife  claimed  the 
privilege  of  not  answering  she  would  be  compelled  to  do  so, 
and    to   some   extent   they   suggest   that   she   would   not. 

(b)  46  Geo.  III.  c.  37.  See  R.  v.  Scott,  25,  128,  and  sub- 
sequent cases  as  to  bankrupts,  and  Ex  parte  Scholfield,  L. 
R.    6   Ch.    Div.    230. 


COMPETENCY  OF  WITNESSES.  825 

that  a  person  offending  against  the  act  under  which  the  de- 
fendant was  being  examined  should  be  a  competent  witness 
against  another  so  offending,  and  that  the  testimony  thus 
given  should  not  be  used  against  the  witness,  nor  should  he 
be  prosecuted  for  the  offense  about  which  he  testified,  peti- 
tioner could  not  incriminate  himself  by  answering  the  ques- 
tions, and  committed  contempt  in  refusing  to  do  so.]1 

(b)  [Petitioner  in  habeas  corpus  proceedings  was  jointly 
indicted  with  others  on  a  charge  of  keeping  for  sale,  offering 
for  sale,  and  selling  lottery  tickets.  After  the  parties  had  gone 
to  trial,  the  case  was  dismissed  as  to  petitioner,  and  he  was 
placed  on  the  stand  by  the  state,  being  asked  the  following 
questions: 

"Do  you  know  of  your  own  knowledge  whether  or  not  any 
lottery  tickets  were  kept  for  sale,  offered  for  sale,  or  sold, 
at  the  'Lucky  Corner'  on  or  about  the  10th  day  of  February 
of  this  year?" 

The  witness  declined  to  answer  on  the  ground  that  the  an- 
swer would  tend  to  incriminate  him  of  an  offense  against 
the  laws  of  this  state,  and  was  committed  for  contempt.  It 
was  held  that  as  the  petitioner  had  acted  as  agent  of  his  co- 
defendants  at  said  "Lucky  Corner,"  and  there  were  then  pend- 
ing several  other  cases  against  him  for  selling  lottery  tick- 
ets at  said  place,  he  rightfully  refused  to  answer.]2 

SELF    INCRIMINATION. 
General   Principles. 

A  witness  is  not  bound  to  answer  a  question  which 
would  tend  to  expose  him  to  conviction  of  crime. — Pleas- 
ant v.  State,  15  Ark.  624;  Anderson  v.  State,  8  Okl.  Cr.  90, 
126  P.  840;  State  v.  Coella,  3  Wash.  99,  28  P.  28  (whether 
she  was  a  prostitute). 

Arkansas.  The  constitutional  provision  that  no  person 
shall  be  a  witness  against  himself  in  any  criminal  case, 
is  paramount  to  any  public  policy  or  necessity  for  pun- 
ishing false  swearing.— Claborn  v.  State,  115  Ark.  387,  171 
S.  W.  862. 

California.  Penal  Code  Sec.  367c,  as  amended  by  St.  1913, 
p.  218,  *which  provides  that  anyone  driving  an  automobile 
which  strikes  another,  must  stop  his  car,  give  the  per- 
son struck  his  car  number  and  his  name  and  address  and 

■[Cohen,  ex   parte,   104  »'al.  524,  38  P.  864.] 

•[Park,  ex  parte.   37   Tex.   Cr.   R.  590,   40   S.   W.   300.] 


826  COMPETENCY  OF  WITNESSES. 

the  name  of  the  owner  of  the  car  and  providing  as  a  pen- 
alty, for  the  violation  of  the  act,  both  fine  and  imprison- 
ment, is  not  obnoxious  to  Sec.  13,  Art.  1,  of  the  Constitu- 
tion, which  declares  that  "no  person  shall  be  compelled, 
in  any  criminal  case,  to  be  a  witness  against  himself." — 
People  v.  Diller,  24  Cal.  App.  799,  142  P.  797. 

North  Dakota.  In  a  proceeding  to  remove  one  from  of- 
fice, under  Rev.  Codes  1905,  Sec.  9646,  defendant  may  re- 
fuse, under  Sec.  7252,  Laws  1907,  to  testify  to  any  matter 
which  may  tend  to  render  him  liable  to  prosecution  in  a 
criminal  action.— State  v.  Borstad,  27  N.  D.  533,  147  N.  W. 
380. 

Oklahoma.  A  co-defendant  cannot  be  compelled  to  testify 
on  behalf  of  the  other  defendant,  when  such  testimony 
would  tend  to  incriminate  her,  and  she  declines  to  an- 
swer on  that  account. — Anderson  v.  State,  8  Okl.  Cr.  90, 
126   P.   840. 

For  an  interesting  account  of  the  origin  of  the  law 
against  compelling  a  person  to  give  evidence  against 
himself  which  would  tend  to  incriminate  him. — Scribner 
v.  State,  9  Okl.  Cr.  465,  132  P.  933. 

Texas.  No  person  can  be  compelled  to  testify  against 
himself  in  a  criminal  case,  nor  give  testimony  on  the  trial 
of  another  person,  from  which  a  prosecution  might-  or 
can  be  founded  against  him.— Muncy,  ex  parte,  72  Tex.  Cr. 
R.  541,  163  S.  W.  29. 

In  a  civil  case,  a  witness  who  desires  to  be  relieved 
from  answering  an  incriminating  question,  must  swear 
that  his  answer  would  incriminate  him.  He  cannot  sit 
silently  by  and  refuse  to  answer  without  a  reason  for  his 
silence. — Sovereign  Camp,  Woodmen  of  the  World  v. 
Bailey,  (Tex.  Civ.  App.),  163  S.  W.  683;  Campbell  v.  Pea- 
cock,   (Tex.  Civ.  App.),   176   S.  W.  774. 

One  jointly  indicted  with  the  defendant  being  tried  on 
a  charge  of  receiving  stolen  goods  may  claim  his  privilege 
of  not  testifying  on  the  ground  that  it  will  tend  to  incrim- 
inate him.— Stanfield  v.  State,  73  Tex.  Cr.  R.  290,  165  S. 
W.  216. 


COMPETENCY  OF  WITNESSES.  827 

Defendant  cannot  be  compelled  to  testify  against  him- 
self in  a  criminal  case. — Guerrero  v.  State,  75  Tex.  Cr.  R. 
558,  171  S.  W.  731. 

The  rule,  that  a  witness  need  not  answer  any  question 
which  might  incriminate  him,  applies  to  civil  as  well  as 
criminal  cases. — Sovereign  Camp,  Woodmen  of  the  World 
v.  Bailey,   (Tex.  Civ.  App.),  183  S.  W.  107. 

Tendency  To  Show  Crime. 
If  the  fact  upon  which  the  witness  is  interrogated  forms 
but  a  single  link  in  the  chain  of  evidence  which  would 
lead  to  his  conviction,  he  is  protected. — Stevens  v.  State, 
50  Kan.  712,  32  P.  350;  Tuttle  v.  People,  33  Colo.  243,  79 
P.  1035;  People  v.  Reggel,  8  Utah  21,  28  P.  955;  Miskimmins 
v.  Shaver,  8  Wyo.  392,  58  P.  411. 

Arkansas.  The  witness  cannot  be  required  to  show  how 
an  answer  will  incriminate  him. — Butt,  ex  parte,  78  Ark. 
262,  93  S.  W.  992. 

California.  The  provision  that  a  person  shall  not  be  com- 
pelled "in  a  criminal  case"  to  be  a  witness  "against  him- 
self" is  to  be  construed  as  protecting  him  from  being  com- 
pelled to  give  any  evidence  which  in  a  criminal  prosecution 
against  himself  might  in  any  degree  tend  to  establish  the 
offense  with  which  he  is  charged. — Cohen,  ex  parte,  104 
Cal.  524,  38  P.  364. 

Colorado.  The  constitutional  provision  that  no  person 
shall  be  compelled  to  testify  against  himself  was  not  in- 
tended merely  to  protect  a  party  from  being  compelled 
to  make  confession  of  guilt,  but  protects  him  from  being 
compelled  to  furnish  a  single  link  in  a  chain  of  evidence 
by  which  his  conviction  of  a  criminal  offense  might  be  se- 
cured.—Tuttle  v.  People,  33  Colo.  243,  79  P.  1035. 
Kansas.  The  witness  cannot  be  required  to  answer  ques- 
tions tending  to  show  that  the  acts  which  he  refuses  to 
disclose  were  not  done  under  such  circumstances  as  would 
constitute  a  crime  under  the  statute. — Stevens  v.  State,  50 
Kan.  712,  32  P.  350. 

Production  of  Books  or  Papers. 
Nevada.     One    who   is    not   the    rightful    custodian    of   the 
books  of  a  corporation,  but  has  them  in  temporary  cus- 


828    [  COMPETENCY  OF  WITNESSES. 

tody,  apparently  for  the  purpose  of  putting  them  out  of 
reach  of  a  grand  jury's  investigation  under  the  refuge  of 
his  constitutional  right  of  their  not  being  used  as  testi- 
mony against  himself,  may  be  ordered  to  deliver  them 
to  the  rightful  custodian,  and  thereafter  they  may  be  or- 
dered to  be  produced  by  such  custodian. — Hedden,  ex 
parte,  29  Nev.  352,   90  P.  737. 

Oklahoma.  It  is  improper  for  the  prosecuting  attorney 
to  make  a  demand  upon  the  defendant  or  his  attorneys 
in  a  criminal  case,  in  the  presence  of  the  jury  who  are 
trying  him,  to  produce  a  deed  or  any  document  referred 
to  containing  evidence  tending  to  incriminate  the  de- 
fendant.—Crump  v.   State,  7  Okl.  Cr.  535,  124  P.   632. 

The  officers  of  an  insolvent  state  bank  cannot  disobey, 
on  the  ground  of  the  constitutional  protection  against  self 
crimination,  the  order  to  produce  and  deliver  the  books, 
records  and  papers  of  such  bank  to  the  State  Bank  Com- 
missioner.—Burnett  v.  State,  8  Okl.  Cr.  639,  129  P.  1110. 
Texas.  In  a  criminal  prosecution  for  forgery,  defendant 
cannot  be  compelled  to  produce  the  alleged  forged  note 
in  his  possession,  as  this  would  be  compelling  him  to  give 
evidence  against  himself. — Meredith  v.  State,  (Tex.  Cr.  R.), 
164  S.  W.  1019. 

Washington.  A  corporation  or  other  person  keeping  books 
is  not  relieved  from  producing  them  when  they  contain 
matters  material  to  the  issue. — Bolster,  In  re,  59  Wash. 
655,  110  P.  547. 

West  Virginia.  The  written  prescriptions  of  practicing 
physicians  on  which  a  licensed  druggist  has  made  sales 
of  intoxicating  liquors,  and  which  he  has  preserved  in 
his  possession,  as  the  statute  directs,  are  not  his  "private 
papers  and  documents,"  within  the  meaning  of  the  con- 
stitutional guaranty  against  compulsory  self-crimination. 
—State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639. 
Federal.  Where  officers,  going  to  defendant's  place  of 
business  under  a  search  warrant,  seized  two  promissory 
notes  signed  by  defendant,  their  admission  in  evidence 
does  not  violate  his  constitutional  right  not  to  be  com- 
pelled to  give  evidence  against  himself. — May  v.  United 
States,  199  Fed.  53. 


COMPETENCY  OF  WITNESSES.  829 

Compulsory  Identification,  or  Production  of  Articles. 

The  compulsory  exhibition  of  defendant's  person  or  the 
use  of  other  means  of  identification  of  the  criminal  by 
the  medium  of  defendant  or  by  articles  connected  with 
him  or  with  the  crime,  is  not  a  violation  of  the  rule  pro- 
hibiting self-incrimination: 

Arkansas:  Starchman  v.  State,-  62  Ark.  538,  36  S.  W. 
940  (drills  fitting  hole  in  safe,  found  in  defendant's  house). 
California:  People  v.  Hope,  62  Cal.  291  (tools  found  in 
defendant's  trunk  corresponding  with  some  found  in  ex- 
cavation near  scene  of  burglary) ;  People  v.  Knapp.  71 
Cal.  1,  11  P.  793  (exhibition  of  clothing  worn  by  de- 
ceased); People  v.  Westlake,  134  Cal.  505,  66  P.  731  (shirts 
and  collars  having  laundry  mark  of  deceased  upon  them, 
together  with  other  articles,  found  in  defendant's  trunk) ; 
People  v.  Sullivan,  129  Cal.  557,  62  P.  101  (what  disposi- 
tion was  made  by  gun  after  murder). 
Nevada:  State  v.  Ah  Chuey,  14  Nev.  79,  33  Am.  Rep. 
530  (compelling  defendant  against  his  objection  to  ex- 
hibit his  arm  for  the  purpose  of  ascertaining  if  it  bore 
certain  tattoo  marks  as  testified  to  by  a  witness). 
Texas:  Walker  v.  State.  7  Tex.  App.  245  (compelling  one 
accused  of  homicide  to  make  prints  of  his  footsteps  in 
ashes  for  purposes  of  identification) ;  Hart  v.  State,  15 
Tex.  App.  202,  49  Am.  Rep.  188  (clothes  worn  by  deceased, 
with  shot  holes  in  them,  exhibited);  Gallaher  v.  State, 
28  Tex.  App.  247.  12  S.  W.  1087  (standing  up  for  identifi- 
cation, without  objection,  with  a  handkerchief  over  his 
face  and  a  broad-brimmed  hat  over  his  head);  Benson  v. 
State,  (Tex.  Cr.  R.).  69  S.  W.  165  (accused  standing  up 
for  identification). 

Washington:  State  v.  Nordstrom,  7  Wash.  506,  35  P.  382 
(boots  and  muddy  socks  of  defendant  exhibited);  State 
v.  Cushing,  14  Wash.  527,  45  P.  145  (clothing  worn  by  de- 
ceased and  gun  with  which  the  shooting  was  done). 

Montana.     That  shoes  taken  from  defendant   without  his 

consent   corresponded    with   tracks  found    near  the   scene 

of  the  killing  is  admissible.— State  v.  Fuller.  34  Mont.  12, 
85  P.  369. 


830  COMPETENCY  OF  WITNESSES. 

Texas.  On  trial  of  an  indictment  for  murder,  it  was  not 
error  to  permit  the  prosecution  to  prove  that  the  examin- 
ing magistrate  had  compelled  the  prisoner  to  make  his 
footprints  in  an  ash  heap,  and  that  they  corresponded  with 
footprints  found  at  the  scene  of  the  crime. — Walker  v. 
State,   7  Tex.  App.   245,   32  Am.   Rep.    595. 

Necessity  of  Claiming  Privilege. 
Where  a  witness  before  a  grand  jury  did  not  claim  his 
privilege,  but  stated  that  at  the  time  the  person  who  was 
being  investigated  robbed  him  the  witness  was  running 
a  gambling  house  and  faro  game,  he  may  be  convicted 
upon  this  testimony,  together  with  other  evidence  subse- 
quently obtained. — People  v.  Reggel,  8  Utah  21,  28  P.  955. 

Persons  Claiming  Privilege. 

Colorado.  The  objection  that  the  answer,  if  made,  may 
tend  to  criminate  the  witness  can  only  be  made  by  the 
witness  himself.  It  is  not  such  an  objection  as  counsel 
may  take  advantage  of,  to  exclude  testimony. — Lothrop 
v.  Roberts,  16  Colo.  250,  27  P.  698. 

The  rule  that  a  witness  cannot  be  compelled  to  testify 
to  facts  that  would  tend  to  criminate  himself  is  a  per- 
sonal privilege  of  the  witness  and  cannot  be  invoked  by  a 
defendant  on  objection  to  the  evidence  of  an  accomplice. 
— Barr  v.  People,  30  Colo.  522,  71  P.  392. 
Washington.  Accused  cannot  object  to  the  testimony  of 
his  employe  on  the  ground  that  it  would  tend  to  incrim- 
inate the  employe. — State  v.  Moser,   (Wash.),  162  P.  582. 

Immunity    From    Prosecution. 

California.  A  witness  in  a  criminal  action  who  has  been 
granted  complete  immunity  from  prosecution  of  the  of- 
fense in  reference  to  which  his  testimony  is  given,  can- 
not refuse  to  answer  incriminating  questions. — People  v. 
Knowles,  27  Cal.  App.  498,  155  P.  137;  Clarke,  ex  parte, 
103  Cal.  352,  37  P.  230;  Cohen,  ex  parte,  104  Cal.  524,  38 
P.  364,  26  L.  R.  A.  423,  43  A.  S.  R.  127. 
Colorado.  After  acquittal  of  a  criminal  charge  it  is  too 
late  for  a  witness  to  refuse  to  answer  questions  on  the 


COMPETENCY  OF  WITNESSES.  831 

ground  that  his  answers  may  tend  to  incriminate  him. — 
Lothrop  v.  Roberts,  16  Colo.  250,  27  P.  698. 
Nevada.  A  witness  cannot  refuse  to  testify  on  the 
ground  that  he  would  thereby  incriminate  himself,  where, 
by  statute,  he  would  be  given  immunity  from  prosecution 
if  he  testified.— Hedden,  ex  parte,  29  Nev.  352,  90  P.  737. 
Oklahoma.  No  statute  which  leaves  a  party  or  witness 
subject  to  prosecution  after  he  answers  the  criminating 
question  put  to  him,  can  have  the  effect  of  supplanting 
the  privilege  conferred  by  the  Constitution.  To  be  valid 
the  statute  must  afford  absolute  immunity  against  future 
prosecution  for  the  offense  to  which  the  question  relates. 
— Gudenoge,  ex  parte,  2  Okl.  Cr.  110,  100  P.  39. 

Waiver  of   Right. 

By  voluntarily  becoming  a  witness,  a  defendant  may  be 
cross-examined  on  all  facts  relative  to  the  case. — State 
v.  Wells,  54  Kan.  161,  37  P.  1005.  Contra,  People  v.  Wong 
Ah  Leong,  99  Cal.  440,  34  P.  105  (can  only  be  cross-exam- 
ined as  to  such  matters  as  were  gone  into  on  his  examina- 
tion in  chief). 

California.  If  a  witness  discloses  a  part  of  a  transaction 
with  which  he  is  criminally  concerned  without  claiming 
his  privilege  he  must  disclose  the  whole  of  it.  He  can- 
not, after  voluntarily  testifying  in  chief  decline  to  be 
cross-examined  upon  the  ground  that  his  answers  may  in- 
criminate or  disgrace  him. — People  v.  Freshour,  55  Cal. 
375. 

A  defendant  who  takes  the  stand  on  his  own  behalf 
cannot  be  cross-examined  on  matters  not  testified  to  on 
his  examination  in  chief.— People  v.  O'Brien,  66  Cal.  602, 
6  P.  695. 

Defendant's  privilege  of  having  the  fact  of  prior  con- 
viction withheld  from  the  jury  is  waived  by  his  becoming 
a  witness.— People  v.  Arnold,  116  Cal.  682,  48  P.  803. 

Where  defendant,  on  trial  for  murder,  makes  no  ob- 
jection to  physicians  examining  him,  and  no  fraud  is  used 
in  securing  his  permission  to  such  examination,  he  cannot 
object  to  their  testimony  under  the  constitutional  provi- 
sion providing  that  no  person  shall  be  compelled,  in  any 


832  COMPETENCY  OF  WITNESSES. 

criminal  case,  to  be  a  witness  against  himself. — People 
v.  Bundy,  168  Cal.  777,  145  P.  537. 

Kansas.  A  defendant  who  takes  the  stand  and  testifies 
as  a  witness  in  his  own  behalf,  may  be  cross-examined 
upon  matters  affecting  his  character  and  credibility  the 
same  as  other  witnesses;  and  the  facts  developed  on  the 
cross-examination,  even  though  they  incidentally  tend 
to  show  that  the  defendant  is  guilty  of  other  offenses 
than  that  for  which  he  is  on  trial,  become  proper  evidence 
in  the  case,  so  far  as  they  tend  to  prove  any  issue  in  the 
case.— State  v.  Wells,  54  Kan.  161,  37  P.  1005. 

When  a  defendant  becomes  a  witness  he  may  be  cross- 
examined  as  to  his  past  life  and  conduct  which  would  im- 
pair his  credibility. — State  v.  Bufnngton,  71  Kan.  804,  81 
P.   465. 

Nevada.  Where  defendant  waives  his  constitutional  privi- 
lege of  remaining  silent,  and  becomes  a  witness  in  his 
own  behalf,  he  cannot  assume  the  right  to  detail  a  part 
of  the  transaction  which  he  deems  favorable  to  himself 
and  claim  exemption  from  testifying  to  other  facts  form- 
ing a  part  of  the  transaction. — State  v.  Urie,  35  Nev.  268, 
129  P.  305. 

Oklahoma.  If  a  witness  elects  to  waive  his  privilege  and 
disclose  his  criminal  relations,  he  is  not  permitted  to 
stop,  but  must  go  on  and  make  a  full  disclosure. — Hed- 
den,   ex  parte,   2   Old.  Cr.   110,   100  P.  39. 

A  defendant  by  availing  himself  of  the  statutory  privi- 
lege of  becoming  a  witness  has  voluntarily  changed  his 
status  from  defendant  to  witness,  and  thereby  waives  his 
constitutional  exemption  from  being  a  witness  against 
himself,  and  places  himself  in  an  attitude  of  any  other  wit- 
ness with  respect  to  the  right  of  cross-examination. — 
Buxton  v.  State,  11  Okl.  Cr.  85,  143  P.  58. 

Where  one  jointly  indicted  with  defendant  becomes  a 
witness,  and  he  takes  the  stand,  he  waives  his  right  to 
claim  immunity  from  incriminating  questions  on  cross-ex- 
amination.—Bryan  v.  State,  11  Okl.  Cr.  180,  144  P.  392. 

Texas.  Defendant,  who  has  been  examined  in  chief  in 
his  own  behalf  and  cross-examined  by  the  state,  and  later 


COMPETENCY  OF  WITNESSES.  833 

recalled  by  the  state  for  further  examination,  cannot  then 
object  to  incriminating  questions,  upon  the  ground  that 
he  cannot  be  compelled  to  testify  against  himself. — Flow- 
ers v.  State,   (Tex.  Cr.  R.),  152  S.  W.  925. 

An  objection  by  a  witness  that  the  answer  to  the 
question  would  tend  to  incriminate  him,  must  be  made 
at  the  threshhold.  He  cannot  wait  and  answer  a  part 
and  then  refuse  to  answer  other  questions  on  cross-ex- 
amination. If  he  voluntarily  states  a  part  of  the  testi- 
mony, he  waives  his  right  and  cannot  afterwards  stand 
on  his  privilege. — Adams,  ex  parte,  76  Tex.  Cr.  R.  277, 
174    S.   W.    1044. 

Washington.  One  who  voluntarily  offers  himself  as  a 
witness,  cannot  invoke  that  provision  of  the  constitution 
which  guarantees  that  no  person  shall  be  compelled,  in 
any  criminal  case  to  give  testimony  against  himself. — 
State  v.  Jackson,  83  Wash.  514,  145  P.  470;  State  v.  Dun- 
can, 7  Wash.  336,  35  P.  117;  State  v.  Ulsemer,  24  Wash. 
657,    64   P.    800. 

Defendant,  in  a  criminal  prosecution,  who  has  taken 
the  stand,  and  been  asked  if  she  has  ever  been  convicted 
before,  cannot  object  to  the  question  as  an  invasion  of 
her  constitutional  right  to  remain  silent. — State  v.  Brown- 
low,  89   Wash.   582,   154   P.   1099. 

Determination  of  Privilege. 

It  is  for  the  court  to  pass  upon  the  sufficiency  of  the 
objection  which  the  witness  urges  to  answering,  and  not 
for  the  witness  to  decline  to  give  relevant  and  pertinent 
testimony,  which  may  be  harmless  to  himself,  upon  his 
mere  declaration  that  his  answer  may  tend  to  incrim- 
inate or  degrade  him. — Rogers,  In  re,  129  Cal.  468,  62  P. 
47;    Park,  ex  parte,  37  Tex.  Cr.  R.  590,  40  S.  W.  300. 

The  witness  is  not  the  final  judge  whether  the  privilege 
exists  in  the  particular  case,  but  the  decision  is  to  be  made 
by  the  court.  —Bradley  v.  Clark,  133  Cal.  196,  65  P.  395; 
Miskimmins  v.  Shaver,  8  Wyo.  392,  58  P.  411,  421. 
Oklahoma.  It  is  for  the  witness,  and  not  the  court,  to 
determine  whether  or  not  her  testimony  will  incriminate 
her.— Anderson  v.  State,  8  Okl.  Cr.  90,  126  P.  840. 


834  COMPETENCY  OF  WITNESSES. 

Article  121. 
corroboration,  when  required. 

No  plaintiff  in  any  action  for  breach  of  prom- 
ise of  marriage  can  recover  a  verdict,  unless  his 
or  her  testimony  is  corroborated  by  some  other 
material  evidence  in  support  of  such  promise,  (a) 

No  order  against  any  person  alleged  to  be  the 
father  of  a  bastard  child  can  be  made  by  any  jus- 
tices, or  confirmed  on  appeal  by  any  Court  of 
Quarter  Session,  unless  the  evidence  of  the  moth- 
er of  the  said  bastard  child  is  corroborated  in 
some  material  particular  to  the  satisfaction  of 
the  said  justices  or  Court  respectively. (b) 

When  the  only  proof  against  a  person  charged 
with  a  criminal  offense  is  the  evidence  of  an  ac- 
complice, uncorroborated  in  any  material  particu- 
lar, it  is  the  duty  of  the  judge  to  warn  the  jury 
that  it  is  unsafe  to  convict  any  person  upon  such 
evidence,  though  they  have  a  legal  right  to  do 
so. (c) 

CORROBORATION. 
Of  Accomplice. 

California.  The  rule  that  a  defendant  cannot  be  con- 
victed of  a  criminal  offense  on  the  testimony  of  an  ac- 
complice, unless  the  same  is  corroborated,  does  not  apply 
to  a  feigned  accomplice. — People  v.   Farrell,   30  Cal.   316. 

(a)  32  &  33  Vict.  c.  68,  s.  2. '  Quaere,  is  he  bound  to  pro- 
duce the  document  criminating  himself?  See  Webb  v.  East, 
5    Ex.    D.    23,    and    109. 

(b)  8  &  9  Vict.  c.  10,  s.   6;   35  &  36  Vict.   c.   6,  s.   4. 

(c)  1  Ph.  Ev.  93-101;  T.  E.  ss.  887-891;  3  Russ.  Cri.  600- 
611.  [The  rule  is  generally  otherwise  in  this  country;  3 
Wigmore  Ev.,    §    2036  et  seq.]. 


COMPETENCY  OF  WITNESSES.  835 

The  testimony  of  a  thirteen-year-old  boy  acting  as  an 
accomplice  in  the  commission  of  a  crime  under  the  threats 
and  coercion  of  defendant  need  not  be  corroborated. — 
People  v.  Miller,  66  Cal.  468,  6  P.  99. 

The  rule  does  not  require  that  an  accomplice  shall  be 
corroborated  in  all  the  essentials  of  an  offense;  it  is  suf- 
ficient if  the  corroborating  evidence,  considered  by  itself, 
tends  in  some  way  to  connect  the  defendant  with  the 
commission  of  the  crime. — People  v.  Thompson,  16  Cal. 
App.  748,  117   P.  1033. 

The  statute  does  not  require  that  the  evidence  neces- 
sary to  corroborate  the  testimony  of  an  accomplice  should 
tend  to  establish  the  precise  facts  testified  to  by  the  ac- 
complice; and  strong  corroborative  evidence  is  not  neces- 
sary to  support  a  judgment  of  conviction  founded  upon 
the  testimony  of  an  accomplice,  if  it  tends  to  connect  the 
accused  with  the  commission  of  the  offense. — People  v. 
Martin,  19  Cal.  App.  295,  125  P.  919. 

The  law  in  this  state  which  declares  that  no  conviction 
can  be  had  upon  the  testimony  of  an  accomplice  alone 
"unless  he  is  corroborated  by  other  evidence  which  in 
itself  and  without  the  aid  of  the  testimony  of  the  accom- 
plice tends  to  connect  the  defendant  with  the  commission 
of  the  offense,"  and  that  "the  corroboration  is  not  suffi- 
cient if  it  merely  shows  the  commission  of  the  offense 
or  the  circumstances  thereof,"  does  not  mean  that  an  ac- 
complice may  not  be  believed  by  the  jury,  and  such  tes- 
timony is  to  be  given  such  weight  as  they  may  conclude 
it  is  entitled  to. — People  v.  Hoosier,  24  Cal.  App.  746,  142 
P.  514. 

Idaho.  In  this  state,  no  person  can  be  convicted  of  a 
crime  on  the  testimony  of  an  accomplice,  without  corro- 
borative evidence  by  other  witnesses  on  some  material 
point  or  circumstance,  which  of  itself  and  without  the 
aid  of  the  testimony  of  the  accomplice,  tends  to  connect 
the  defendant  with  the  commission  of  the  offense. — State 
v.  Grant,  26  Ida.  189,  140  P.  959. 

Kansas.  The  uncorroborated  testimony  of  an  accomplice 
is  legally  sufficient  to  sustain  a  verdict. — State  v.  Patter- 
son, 52  Kan.  335,  34  P.  784. 


836  COMPETENCY  OF  WITNESSES. 

It  is  the  duty  of  the  trial  judge  in  a  criminal  case,  if 
requested  to  do  so,  to  advise  the  jury  not  to  convict  upon 
the  testimony  of  an  accomplice  alone,  unless  his  testimony 
is  corroborated  by  other  evidence  as  to  some  material 
fact.— State  v.  Patterson,  52  Kan.  335,  34  P.  784. 
Montana.  The  corroborative  evidence  required  under  Sec. 
9290,  Rev.  Codes,  to  warrant  the  conviction  of  defendant 
for  a  crime,  must  be  independent  evidence  of  itself  with- 
out considering  the  evidence  of  accomplices. — State  v. 
Lawson,  44  Mont.  488,  120  P.  808;  State  v.  Geddes,  22  Mont. 
68,  55  P.  919. 

Evidence,  as  a  whole,  examined  and  found  to  contain 
enough  probative  value,  independent  of  the  testimony 
of  an  accomplice,  to  warrant  its  submission  to  the  jury, 
in  an  action  charging  defendant  with  grand  larceny. — 
State  v.  Biggs,  45  Mont.  400,  123  P.  410. 
Nebraska.  A  conviction  may  rest  on  the  uncorroborated 
evidence  of  an  accomplice,  when,  considered  with  all  the 
testimony,  it  satisfies  the  jury,  beyond  a  reasonable  doubt, 
of  the  guilt  of  the  accused.— Lamb  v.  State,  40  Neb.  312, 
58  N.  W.  963. 

North  Dakota.  No  conviction  of  any  crime  can  be  had 
upon  the  uncorroborated  testimony  of  an  accomplice; 
there  must  be  other  testimony  tending  to  connect  the  dc 
fendant  with  the  commission  of  the  offense,  but  such 
corroborative  evidence  need  not  cover  every  material 
point  or  be  sufficient  alone  to  warrant  a  verdict  of  guilty. 
—State  v.  Reilly,  22  N.  D.  353,  133  N.  W.  914. 

While  a  conviction  cannot  be  had  upon  the  testimony 
of  an  accomplice,  unless  he  is  corroborated  by  other  evi- 
dence which  tends  to  connect  defendant  with  the  offense, 
yet,  such  testimony  need  not  cover  every  material  point 
testified  to  by  the  accomplice,  or  be  sufficient  in  itself  to 
warrant  a  verdict  of  guilty.— State  v.  Dodson,  23  N.  D. 
305,  136  N.  W.  789. 

Oklahoma.  It  matters  not  how  anxious  a  jury  may  be  to 
believe  an  accomplice,  the  law  is  that  they  cannot  con- 
vict defendant  upon  the  accomplice's  evidence,  unless  cor- 
roborated by  other  testimony  tending  to  connect  defendant 
with  the  offense  committed.— Camp  v.  State,  7  Okl.  Cr. 
531,   124  P.  331. 


COMPETENCY  OF  WITNESSES.  837 

Texas.  In  a  prosecution  for  murder,  the  testimony  of  an 
accomplice  may  be  considered  along  with  other  testimony 
to  establish  the  unlawful  killing. — Ingram  v.  State,  (Tex. 
Cr.  R.),  182  S.  W.  290. 

In  a  criminal  action,  the  testimony  of  a  co-defendant 
indicted  for  the  same  offense,  must  be  corroborated  by 
testimony  which  tends  to  connect  defendant  with  the  of- 
fense.—Smith  v.  State,  (Tex.  Cr.  R.),  182  S.  W.  311. 
Utah.  In  this  state,  no  person  can  be  convicted  of  a 
crime  on  the  testimony  of  an  accomplice  without  corrobo- 
rative evidence  by  other  witnesses  which  of  itself  and 
without  the  aid  of  the  testimony  of  the  accomplice  tend 
to  connect  the  defendant  with  the  commission  of  the 
offense.— State  v.  Park,  44  Utah  360,  140  P.  768. 
Washington.  The  testimony  of  accomplices,  without 
corroboration,  may  be  sufficient  to  support  a  conviction 
for  performing  an  abortion. — State  v.  Stapp,  65  Wash.  438, 
118    P.    337. 

For  burglary.— State  v.  Mallahan,  66  Wash.  21,  118  P. 
898. 

No  corroboration  of  an  accomplice  is  necessary  in  this 
state.— State  v.  MacLeod,  78  Wash.  175,  138  P.  648. 

A  conviction  may  be  had  upon  the  uncorroborated  tes- 
timony of  an  accomplice,  but  defendant  is  entitled  to  an 
instruction,  if  he  requests  it,  against  a  conviction  on  the 
uncorroborated  testimony  of  an  accomplice. — State  v. 
Engstrom,  86  Wash.  499,  150  P.  1173. 

Another  Accomplice   As  Corroborator. 

Oklahoma.  In  a  criminal  action,  if  two  or  more  accom- 
plices testily,  the  same  corroboration  is  required  as  if 
there  be  but  one;  an  accomplice  can  neither  corroborate 
himself  nor  another  accomplice. — Cudjoe  v.  State,  (Okl. 
Cr.),  154  P.  500;  Clark  v.  State.  (Okl.  Cr.),  154  P.  1005; 
Mclional.!  v.  Stair.  (Okl.  Cr.).  1T>2  V.  610. 
Texas.  One  accomplice  cannot  be  corroborated  by  dec- 
larations made  by  him.  nor  by  testimony  of  another  ac- 
complice.—Holmes  v.  State,  70  Tex.  Cr.  R.  214,  156  S. 
W.  1172. 


838  COMPETENCY  OF  WITNESSES. 

Defendant,  in  a  criminal  case,  cannot  be  convicted 
alone  upon  the  testimony  of  an  accomplice;  nor  can  two 
accomplices  corroborate  each  other. — Guiterrez  v.  State, 
(Tex.  Cr.  R.),  173  S.  W.  1025. 

Divorce  Cases. 
A  divorce  cannot  be  granted  upon  the  uncorroborated 
evidence  of  the  plaintiff. — Rie  v.  Rie,  34  Ark.  37;   Cooper 
v.    Cooper,   88   Cal.   45,   25   P.   1062. 

Colorado.  A  divorce  may  be  obtained  upon  the  uncorro- 
borated testimony  of  the  plaintiff  alone. — Sylvis  v.  Sylvis, 
11  Colo.  319,  17  P.  912. 

1 
Perjury    or    Bribery. 

In  a  perjury  case  the  testimony  which  is  required  addi- 
tional to  that  of  one  witness  must  be  corroborative  of 
the  testimony  of  the  accusing  witness,  and  the  corrobora- 
tion must  go  beyond  slight,  indifferent,  or  immaterial  par- 
ticulars and  must  go  to  some  one  particular  false  state- 
ment.—Thomas  v.  State,  51  Ark.  138,  10  S.  W.  193; 
BroOkin  v.  State,  27  Tex.  App.  701,  11  S.  W.  645. 
Texas.  Upon  a  prosecution  for  attempting  to  bribe  a 
witness  not  to  appear  and  testify  against  a  defendant  on 
trial  charged  with  a  crime,  corroboration  of  such  witness's 
testimony  is  not  necessary. — Savage  v.  State,  (Tex.  Cr.  R.), 
170  S.  W.  730. 

Of  Prosecutrix  in   Sexual  Crimes. 

In  bastardy  proceedings,  the  uncorroborated  evidence  of 
the  complaining  mother  is  sufficient  to  convict,  though  it 
is  contradicted  by  defendant. — State  v.  Tipton,  15  Mont. 
74,  38  P.  222;  Olson  v.  Peterson,  33  Neb.  358,  50  N.  W.  155. 

An  action  for  bastardy  is  a  civil  proceeding,  and  a  fair 
preponderance  of  the  evidence  only  is  necessary. — Koepke 
v.  Delfs,  95  Neb.  619,  146  N.  W.  962;  Libby  v.  State,  42 
Old.   603,   142  P.   406. 

Arkansas.  In  this  state,  the  mother  is  a  competent  wit- 
ness in  bastardy  cases,  unless  she  is  incompetent  in  any 
case,  without  corroboration. — Kennedy  v.  State,  117  Ark. 
ri3,  173  S.  W.  842;  Quails  v.  State,  92  Ark.  200,  122  S.  W. 
498. 


COMPETENCY  OF  WITNESSES.  839 

California.  Prosecutrix  need  not  be  corroborated  in  a 
case  of  rape  under  age  of  consent. — People  v.  Parrish,  25 
Cal.  App.  314,  143  P.  546. 

Colorado.  In  this  state,  no  corroboration  is  necessary  of 
the  victim's  testimony  in  a  rape  case,  to  support  a  con- 
viction.— Dickens  v.  People,  60  Colo.  141,  152  P.  909;  Bueno 
v.  People,  1  Colo.  App.  232,  28  P.  248;  Peckham  v.  People, 
32  Colo.   142,   75   P.   422. 

North  Dakota.  In  this  state,  in  bastardy  cases,  testimony 
of  the  complainant  need  not  be  corroborated. — State  v. 
Brunette,  28  N.  D.  539,  150  N.  W.  271. 
Texas.  A  conviction  for  adultery  cannot  be  sustained  on 
the  uncorroborated  testimony  of  the  female,  she  being 
an  accomplice.— Wallace  v.  State,  63  Tex.  Cr.  R.  611,  141 
S.  W.  95. 

In  seduction  cases,  the  seduced  woman  does  not  have 
to  be  corroborated  in  each  and  every  particular  of  what 
it  takes  to  constitute  guilt  of  the  accused. — Gillespie  v. 
State,  73  Tex.  Cr.  R.  585,  166  S.  W.  135;  Nash  v.  Nash,  61 
Tex.  Cr.  R.  269,  134  S.  W.  709. 

Washington.  In  a  prosecution  for  statutory  rape,  suffi- 
cient corroboration  of  the  testimony  of  prosecuting  wit- 
ness is  furnished  by  a  witness  who  testifies  to  an  admis- 
sion of  a  similar  act  by  defendant  with  the  prosecuting 
witness.— State  v.  Workman,  66  Wash.  292,  119  P.  751. 

Corroboration  of  rape  may  consist  in  circumstantial 
evidence.— State  v.   Sefrit,  82  Wash.   520,   144   P.   725. 

In  bastardy  cases,  no  corroboration  of  prosecutrix  is 
necessary.— State  v.  Morden,  87  Wash.   465,  151  P.  832. 

Corroboration    of    Witness    Swearing    Falsely    in    Material 
Matter. 

If  a  witness  knowingly  and  wilfully  swears  falsely  in  a 
material  matter,  his  testimony  should  be  rejected  entirely 
unless  corroborated  by  the  facts  and  circumstances  of 
the  case,  or  other  credible  evidence. — Bonnie  v.  Earll,  12 
Mont.  239,  29  P.  882;  People  v.  Paulsell.  115  Cal.  6,  46 
P.  734. 


840  COMPETENCY  OP  WITNESSES. 

Article  121a. 

CLAIM    ON    K  STATE    OF    DECEASED    PERSON. 

Claims  upon  the  estate  of  deceased  persons, 
whether  founded  upon  an  allegation  of  debt  or  of 
gift,  ought  not  to  be  maintained  upon  the  uncor- 
roborated testimony  of  the  claimant,  unless  cir- 
cumstances appear  or  are  proved  which  make  the 
claim  antecedently  probable,  or  throw  the  burden 
of  disproving  it  on  the  representatives  of  the  de- 
ceased, (a) 

Illustrations. 

(a)  A,  a  widow,  swore  that  her  deceased  husband  gave 
her  plate,  etc.,  in  his  house,  but  no  circumstances  corrobo- 
rated   her   allegation.      Her    claim    was    rejected.1 

(b)  A,  a  widow,  claimed  the  rectification  of  a  settlement 
drawn  by  her  husband  the  night  before  their  marriage,  and 
giving  him  advantages  which,  as  she  swore,  she  did  not 
mean  to  give  him,  and  were  hot  explained  to  her  by  him. 
Tier    claim    was    admitted    though    uncorroborated.2 

Article  122. 
number  op  witnesses. 

In  trials  for  high  treason,  or  misprision  of 
treason,  no  one  can  be  indicted,  tried,  or  attainted 
(unless  he  pleads  guilty)  except  upon  the  oath  of 
two  lawful  witnesses,  either  both  of  them  to  the 
same  overt  act,  or  one  of  them  to  one  and  another 

(a)  [See  article  106,  supra,  for  observations  upon  the  stat- 
utory  rule   as   to   survivor's    testimony.] 

^inch  v.   Finch,    23   Ch.    D.    267. 

2Lovesy  v.  Smith,  15  Ch.  D.  655.  In  re  Garnett,  Gandy  v. 
Macaulay,  31  Ch.  D.  1,  is  a  similar  case.  In  re  Hodgson, 
Beckett  v.  Ramsdale,  31  Ch.  D.,  p.  183,  the  language  of  Han- 
nen,  J.,  in  words  somewhat  relaxes  the  rule,  but  not,  I  think, 
in   substance. 


COMPETENCY  OF  WITNESSES.  841 

of  them  to  another  overt  act  of  the  same  treason. 
If  two  or  more  distinct  treasons  of  divers  heads 
or  kinds  are  alleged  in  one  indictment,  one  witness 
produced  to  prove  one  of  the  said  treasons  and 
another  witness  produced  to  prove  another  of  the 
said  treasons  are  not  to  be  deemed  to  be  two  wit- 
nesses to  the  same  treason  within  the  meaning  of 
this  article,  (a) 

This  provision  does  not  apply  to  cases  of  high 
treason  in  compassing  or  imagining  the  Queen's 
death,  in  which  the  overt  act  or  overt  acts  of  such 
treason  alleged  in  the  indictment  are  assassina- 
tion or  killing  of  the  Queen,  or  any  direct  attempt 
against  her  life,  or  any  direct  attempt  against  her 
person,  whereby  her  life  may  be  endangered  or 
her  person  suffer  bodily  harm,  (b)  or  to  misprision 
of  such  treason. 

If  upon  a  trial  for  perjury  the  only  evidence 
against  the  defendant  is  the  oath  of  one  witness 
contradicting  the  oath  on  which  perjury  is  as- 
signed, and  if  no  circumstances  are  proved  which 
corroborate  such  witness,  the  defendant  is  entitled 
to  be  acquitted,  (c) 

NUMBER    OF    WITNESSES. 
General    Rules. 

The  number  of  witnesses  is  sometimes  limited  by  rules 
of  court.— Hoskins  v.  Northern  Pac.  R.  Co.,  39  Mont.  394, 
102  P.  988;    Brady  v.  Shirley,  18  S.  U.  608,  101  N.  W.  886. 

(a)  7  &  s  Will.  111.  <■.  :t.  ss.  -J.  I;  [ :',  Wlgmora  Kv..  5  203G 
et   sei|  |. 

(l.)   :\\>  &    in   Geo.    ill.   c 

(c)  3  Uuss.  on  Crimes,  T7-ss:  [3  Wigmore  Kv.,  5S  2040- 
2043]. 


842  COMPETENCY  OF  WITNESSES. 

California.  A  preponderance  of  evidence  does  not  neces- 
sarily mean  a  preponderance  of  the  number  of  witnesses. 
—Grant  v.  McPherson,  104  Cal.  165,  37  P.  864. 
Colorado.  The  court  may  limit  the  number  of  experts 
that  may  be  called  upon  the  trial. — Huett  v.  Clark,  4  Colo. 
App.    231,    35    P.    671. 

It  is  within  the  discretion  of  the  trial  court  to  limit  the 
number  of  witnesses  who  may  be  allowed  to  testify  upon 
a  given  point. — Outcalt  v.  Johnston,  9  Colo.  App.  519,  49 
P.   1058. 

Kansas.  Every  person  who  is  a  party  to  an  action,  and 
not  incompetent  to  testify,  has  a  right,  in  protection  of 
his  interests,  to  be  heard  as  a  witness  as  to  what  he  has 
seen  and  knows  of  the  principal  matter  in  controversy; 
and  the  court  may  not,  by  limiting  the  number  of  wit- 
nesses on  a  side,  deprive  him  of  that  right. — Fisher  v. 
Conway,   21   Kan.    18. 

Montana.  The  jury  are  not  bound  to  regard  the  weight 
of  the  evidence  as  preponderating  in  favor  of  the  party 
who  produces  the  greater  number  of  witnesses. — Lehane 
v.  Butte  Elec.  Ry.  Co.,  37  Mont.  564,  97  P.  1038. 

Nebraska.  A  preponderance  of  evidence  is  not  determined 
alone  by  the'number  of  witnesses  testifying  to  a  particular 
fact.  In  determining  upon  which  side  the  evidence  pre- 
ponderates, the  credibility  of  the  witnesses,  their  situa- 
tion, interest,  means  of  knowledge,  and  manner  of  testi- 
fying, should  be  considered.— Fitzgerald  v.  Richardson, 
30  Neb.  365,  46  N.  W.  615;  Buck  v.  Hogeboom,  2  Neb. 
(Unof.)   853,  90  N.  W.  635. 

A  jury  is  not  required  to  decide  a  disputed  proposition 
of  fact  merely  by  a  count  of  witnesses,  but  should  deter- 
mine which  are  the  most  worthy  of  credit;  and  where  the 
evidence  is  conflicting,  a  verdict  based  upon  the  testi- 
mony of  the  minority  of  the  witnesses  will  not  be  dis- 
turbed, unless  it  is  manifestly  wrong. — Howell  Lumber 
Co.  v.  Campbell,  38  Neb.  567,  57  N.  W.  383. 

A  trial  court  may  limit  the  number  of  witnesses  that 
may  be  called  to  prove  facts  collateral  to  the  main  issue. 
— Biester  v.  State,  65  Neb.  276,  91  N.  W.  416. 


COMPETENCY  OF  WITNESSES.  843 

Where  the  evidence  is  conflicting,  it  is  within  the  prov- 
ince of  the  jury  sitting  at  the  trial  to  consider  all  proved 
physical  facts  and  conditions  attending  the  main  fact  for 
the  purpose  of  arriving  at  the  true  solution  of  the  ques- 
tion presented.  They  are  not  bound  by  the  number  of 
witnesses  testifying  if  in  the  exercise  of  reasonable  judg- 
ment they  are  convinced  that  the  truth  is  shown  by  the 
side  producing  the  smaller  number  of  witnesses. — Hos- 
kovec  v.  Omaha  Street  Ry.  Co.,  85  Neb.  295,  123  N.  W.  305. 
Texas.  The  proposition  that  where  witnesses  are  equal 
in  credibility  the  greatest  number  must  prevail  is  un- 
tenable.—Jones  v.  State,  13  Tex.  168,  62  Am.  Dec.   550. 

Evidence  is  not  weighed  by  the  number  but  by  the 
credibility  of  the  witnesses,  and  the  probable  truth  of 
their  testimony. — International  &  G.  N.  R.  Co.  v.  Poloma, 
(Tex.   Civ.   App.),    123   S.   W.    1149. 

Washington.  An  instruction  that  the  number  of  witnesses 
might  control  where  they  are  all  of  the  same  candor,  fair- 
ness, intelligence,  truthfulness,  and  equally  corroborated 
by  other  evidence,  held  not  to  have  misled  the  jury. — 
Northern  Pac.  R.  Co.  v.  Holmes,  3  Wash.  Ter.  543,  18  P.  76. 

In  Prosecutions  For  Perjury. 
Arkansas.  Perjury  cannot  be  established  by  proof  of  de- 
fendant's contradictory  statements  alone,  or  by  his  .ad- 
missions.—State  v.  Binkley,  123  Ark.  240,  185  S.  W.  279. 
California.  In  a  prosecution  for  perjury  in  falsely  testi- 
fying that  witness  met  a  certain  cow  at  a  particular  place 
upon  the  highway  at  8  o'clock  one  morning,  it  is  neces- 
sary to  produce  the  positive  testimony  of  at  least  one  wit- 
ness that  such  meeting  did  not  take  place,  as  that  the 
defendant  was  not  at  that  time  at  that  place,  or  that  the 
cow  was  not  there. — People  v.  Wells,  103  Cal.  631,  37  P. 
529. 

Kentucky.  To  convict  for  perjury  it  is  sufficient  either 
that  there  are  two  witnesses,  or  that  the  testimony  of  the 
one  witness  is  corroborated  or  sustained  by  other  facts 
appearing  in  the  case  or  testified  to  by  other  witnesses. 
— Williams  v.  Commonwealth.  24  Ky.  Law  Rep.  465,  68 
S.  W.   871. 

Mississippi.  The  state  must  prove  by  two  witnesses,  or 
by   one   witness   and   corroborating  circumstances   beyond 


844  COMPETENCY  OP  WITNESSES. 

reasonable  doubt  that  defendant  was  not  present  at  the 
place  and  time  of  an  assault  as  testified  to  by  him  on 
the  trial  in  which  he  was  a  witness. — Whittle  v.  State,  79 
Miss.  327,  30  So.  722;  accord:  Lee  v.  State,  105  Miss 
539,   62   So.   360. 

Missouri.  A  conviction  for  perjury  will  not  be  sustained 
upon  the  evidence  of  a  single  uncorroborated  witness,  but 
it  is  now  held  in  this  state  and  generally  in  the  courts  of 
other  states,  that  any  facts  or  circumstances  which  are 
strongly  corroborative  of  the  accusing  witness  will  be  suf- 
ficient.— State  v.  Blize,  111  Mo.  464,  20  S.  W.  210;  State 
v.  Faulkner,  175  Mo.  546,  75  S.  W.  116. 
Oklahoma.  In  a  prosecution  for  perjury,  the  falsity  of 
the  defendant's  evidence  may  be  established  by  circum- 
stantial evidence,  but  the  facts  constituting  such  circum- 
stantial evidence  must  be  directly  and  positively  sworn 
to  by  at  least  one  credible  witness,  supported  by  corro- 
borating evidence,  and,  taken  as  a  whole  must  be  of  such 
a  conclusive  character  as  to  exclude  every  other  reason- 
able hypothesis  except  that  of  the  defendant's  guilt. — 
Metcalf,  ex  parte,  8  Okl.  Cr.  605,  129  P.  675. 
Texas.  To  convict  of  perjury  there  must  be  the  direct 
testimony  of  two  witnesses  or  of  one  witness  strongly 
corroborated. — Brookin  v.  State,  27  Tex.  App.  701,  11  S. 
W.  645;  Reed  v.  State,  (Tex.  Cr.  R.),  183  S.  W.  1168. 
Washington.  Corroboration  held  sufficient  on  the  facts. 
—State  v.  Miller,  80  Wash.  75,  141  P.  293. 

NOTE  XXXIX. 
(To  Chapter  XV.) 

The  law  as  to  the  competency  of  witnesses  was  formerly 
the  most,  or  nearly  the  most,  important  and  extensive  branch 
of  the  Law  of  Evidence.  Indeed,  rules  as  to  the  incompetency 
of  witnesses,  as  to  the  proof  of  documents,  and  as  to  the 
proof  of  some  particular  issues,  are  nearly  the  only  rules 
of  evidence  treated  of  in  the  older  authorities.  Great  part 
of  Bentham's  "Rationale  of  Judicial  Evidence"  is  directed 
to  an  exposure  of  the  fundamentally  erroneous  nature  of  the 
theory  upon  which  these  rules  were  founded;  and  his  attack 
upon  them  has  met  with  a  success  so  nearly  complete  that 
it  has  itself  become  obsolete.  The  history  of  the  subject 
is  to  be  found  in  Mr.  Best's  work,  book  i.  part  i.  ch.  ii.  ss. 
132-188.  See,  too,  T.  E.  1210-1257,  and  R.  N.  P.  177-181.  As 
to    the    old    law,    see    1    Ph.    Ev.    1-104. 


EXAMINATION  OF  WITNESSES  845 


CHAPTER  XVI. 

OF  TAKING  ORAL  EVIDENCE,  AND  OF  THE  EXAMINA- 
TION OF  WITNESSES. 

Article  123. 
evidence  to  be  upon  oath,  except  in  certain  cases. 

All  oral  evidence  given  in  any  proceeding  must 
be  given  upon  oath,  but  if  any  person  called  as  a 
witness  refuses  or  is  unwilling  to  be  sworn  from 
alleged  conscientious  motives,  the  judge  before 
whom  the  evidence  is  to  be  taken  may,  upon  being 
satisfied  of  the  sincerity  of  such  objection,  per- 
mit such  person,  instead  of  being  sworn,  to  make 
his  or  her  solemn  affirmation  and  declaration  in 
the  following  words: — 

"I,  A  B,  do  solemnly,  sincerely,  and  truly  affirm 
and  declare  that  the  taking  of  any  oath  is  accord- 
ing to  my  religious  belief  unlawful,  and  I  do  also 
solemnly,  sincerely,  and  truly  affirm  and  declare," 
etc.  (a) 

(b)If  any  person  called  to  give  evidence  in  any 
Court  of  Justice,  whether  in  a  civil  or  criminal 
proceeding,  objects  to  take  an  oath,  or  is  objected 
to  as  incompetent  to  take  such  an  oath,  such  per- 
son must,  if  the  presiding  judge  is  satisfied  that 

(a)  17  &  18  Vict.  e.  125,  s.  20  (civil  cases);  24  &  25  Vict, 
c.    66    (criminal    cases).      [3    Wigmore    Ev„    §    1818.] 

(b)  32  &  33  Vict.  c.  68,  s.  4;  33  &  34  Vict.  c.  49.  I  omit 
special  provisions  as  to  Quakers,  Moravians,  and  Separatists, 
as  the  enactments  mentioned  above  include  all  cases.  The 
statutes  are  referred  to  in  T.  E.  s.  1254;  R.   N.  P.  175-176. 


846  EXAMINATION  OF  WITNESSES. 

the  taking  of  an  oath  would  have  no  binding  ef- 
fect on  his  conscience,  make  the  following  prom- 
ise and  declaration — 

"I  solemnly  promise  and  declare  that  the  evi- 
dence given  by  me  to  the  Court  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth." 

If  any  person  having  made  either  of  the  said 
declarations  wilfully  and  corruptly  gives  false 
evidence,  he  is  liable  to  be  punished  as  for  per- 
jury. 

OATHS. 

By  Whom  Administered. 

California.     An  oath,  to  be  binding,  must  be  administered 

by  an  officer   having   legal   authority   to   administer  it. — 

People  v.  Cohen,  118  Cal.  74,  50  P.  20. 

Form  of  Oaths. 
California.  Where  it  does  not  appear  that  the  court  was 
informed  that  a  witness  had  a  peculiar  way  of  swearing 
more  solemn  and  obligatory  than  the  usual  form,  nor  that 
the  witness  believed  in  any  other  than  the  Christian  re- 
ligion, it  was  not  error  for  the  court  to  swear  the  witness 
in  the  usual  form.— People  v.  Green,  99  Cal.  564,  34  P.  231. 
Oregon.  A  general  oath  that  the  evidence  that  the  wit- 
ness would  give  would  be  the  truth,  the  whole  truth 
and  nothing  but  the  truth,  is  sufficient  where  the  witness 
had  written  a  contract  in  the  German  language  and  had 
seen  the  parties  sign  it  and  he  was  asked  to  read  it  and 
translate  it  to  the  jury. — Krewson  v.  Purdom,  13  Or.  563, 
11  P.  281. 

Washington.  The  fact  that  in  a  criminal  cause,  the  jury 
was  sworn  as  follows:  "You,  and  each  of  you,  do  solemnly 
swear  that  you  will  truly  try  Gin  Pon  and  true  deliverance 
make  between  the  state  and  the  prisoner  at  the  bar.  So 
help  you  God,"  under  a  statute  which  provides  that  the  jury 
shall  be  sworn  or  affirmed  to  well  and  truly  try  the  issues 
between   the   state   and   the   prisoner   at   bar   whom   they 


EXAMINATION  OF  WITNESSES.  847 

shall  have  in  charge  according  to  the  evidence,  is  not  such 
a  variance  as  to  warrant  a  reversal,  when  the  jury  had 
been  charged  by  the  court  that  their  verdict  was  to  be 
rendered  upon  the  evidence  produced  in  the  case. — State 
v.  Gin  Pon,  16  Wash.  425,  47  P.  961. 

Where  an  oath  has  been  administered  to  a  Chinese  wit- 
ness according  to  the  custom  and  religion  of  his  country, 
the  subsequent  administration  to  him  of  an  oath  in  the 
form  prescribed  by  statute,  is  not  prejudicial  error. — 
State  v.  Gin  Pon,  16  Wash.  425,  47  P.  961. 

Article  124. 
fokm  of  oaths;  hy  whom  tufa"  may  be  administered. 

Oaths  are  binding  which  are  administered  in 
such  form  and  with  such  ceremonies  as  the  per- 
son sworn  declares  to  be  binding,  (a) 

Every  person  now  or  hereafter  having  power 
by  law  or  by  consent  of  parties  to  hear,  receive, 
and  examine  evidence,  is  empowered  to  admin- 
ister an  oath  to  all  such  witnesses  as  are  lawfully 
called  before  him.(b) 

Illustration. 

(a)  [The  plaintiff  introduced  one  H,  who,  when  placed  on 
the  stand,  declined  to  be  sworn  or  affirmed,  on  the  ground 
that  he  had  conscientious  scruples  against  taking  an  oath 
or  affirmation.  Witness  also  said  that  he  regarded  the 
scriptural  injunction,  to  "let  your  communications  be  yea, 
ye  i.  and  nay,  nay,  and  whatsoever  more  than  this  cometh  of 
evil."  as  binding  upon  his  conscience,  and  that  to  take  the 
oath  or  affirmation,  as  prescribed  by  the  statute,  would  be 
a  violation  of  his  conscience  and  religious  convictions.  The 
court  then  directed  the  clerk  to  repeat  the  following  words 
to  tlic  witness:  "You  do  solemnly  state  that  the  evidence 
you    shall    give    in    the    case    wherein    S    is    plaintiff    and    M    is 

(a)  1  &  2  Vict.  c.  105.  For  the  old  law,  see  Omichund  v. 
Barker,   1   S.   L.  C.    455;    [3   Wigmore  Ev.,   §§   1817,   1818]. 

(b)  14    &    15    Vict.    c.    99,    8.    16. 


848  EXAMINATION  OF  WITNESSES. 

defendant,  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth."  The  witness  signified  his  assent  thereto  by 
saying   "I   do." 

The  testimony  of  the  witness  thereafter  given  was  held 
to  have  been  erroneously  received,  as  being  made  only  on 
his  declaration  to  tell  the  truth,  without  either  an  oath  or 
an   affirmation    being   administered,    as    required    by    statute.]1 

OATHS  OF  WITNESSES. 

Idaho.  It  was  not  error  to  permit  witnesses  to  be  sworn 
in  a  body.— State  v.  Crea,  10  Ida.  88,  76  P.  1013;  State  v. 
Rooke,  10  Ida.  388,  79  P.  82. 

Texas.  Where  plaintiff  was  permitted  to  be  sworn  with 
other  witnesses,  but,  being  deaf,  could  not  hear  the  oath 
as  it  was  administered,  such  fact  did  not  furnish  grounds 
for  a  new  trial,  defendant  necessarily  knowing  that  wit- 
ness being  questioned  was  deaf  and  not  then  objecting  to 
her  testimony. — Texas  &  P.  Ry.  Co.  v.  Reid,  (Tex.  Civ. 
App.),  74  S.  W.  99. 

Washington.  Oath  administered  to  Chinese  witnesses  ac- 
cording to  their  custom,  of  each  witness  blowing  out  a 
candle,  his  oath  being  that  if  he  did  not  tell  the  truth 
he  would  be  snuffed  out  as  was  the  candle. — State  v.  Gin 
Pon,  16  Wash.  425,  47  P.  961. 

Necessity  of  Administering. 
Arkansas.     It  was  error  to  permit  an  unsworn  witness  to 
make  a  statement  to  the  jury. — Walker  v.  Noll,   92  Ark. 
148,    122    S.    W.    488. 

Oregon.  No  person  can  testify  as  a  witness  unless  sworn, 
without  the  consent  of  the  parties. — State  v.  Tom,  8  Or. 
177. 

Texas.  Where  the  sole  witness  in  a  criminal  prosecution 
was  not  sworn,  it  was  error  to  permit  him  to  be  sworn 
and  testify  again  after  the  trial  had  been  had  and  argu- 
ments made. — Thompson  v.  State,  37  Tex.   121. 

Where  the  witness  was  too  deaf  to  hear  the  oath  ad- 
ministered to  her,  but  was  consciously  sworn,  it  was  suf- 
ficient, whether  she  actually  heard  the  officer  who  admin- 
istered the  oath  or  not. — Texas  &  P.  Ry.  Co.  v.  Reid,  (Tex. 
Civ.  App.),  74  S.  W.  99. 
I  - 

![Mayberry  v.    Sivey,    18   Kan.    291.] 


EXAMINATION  OF  WITNESSES.  849 

Washington.  In  this  state  there  is  no  statute  permitting 
a  child  to  testify  without  first  heing  sworn,  and  it  is  tech- 
nical but  not  prejudicial  error  to  permit  the  child  to 
testify  without  being  sworn. — Hodd  v.  City  of  Tacoma, 
45  Wash.  436,  88  P.  842. 

Waiver  of   Irregularities. 

Texas.  A  party  allowing  a  witness  to  give  testimony 
without  being  sworn  thereby  waives  any  objection  on  that 
account.— Trammell  &  Co.  v.  Mount,  68  Tex.  210,  4  S.  W. 
377. 

If  defendant  knew  that  a  witness  was  testifying  without 
being  sworn,  it  was  his  duty  to  interpose  an  objection  to 
the  evidence;  otherwise  he  would  be  considered  as  waiv- 
ing the  oath.— Ogden  v.  State,  (Tex.  Cr.  R.),  58  S.  W.  1018. 

To  permit  a  witness  to  testify  without  objection  at  the 
time  and  knowing  that  she  was  too  deaf  to  hear  the  oath 
administered,  is  to  waive  the  irregularity. — Texas  &  P. 
Ry.  Co.  v.  Reid,  (Tex.  Civ.  App.),  74  S.  W.  99. 


Article  125. 
how  oral  evidence  may  15e  taken. 

Oral  evidence  may  be  taken  (a)  (according  to 
the  law  relating  to  civil  and  criminal  proce- 
dure)— 

In  open  court  upon  a  final  or  preliminary  hear- 
in0"  ■ 

Or  out  of  court  for  future  use  in  court — 

(a)   upon  affidavit. 

(a)    As    to   civil    procedure,    gee    Order    XXXVII.    to    Judica- 
ture Act  of   1875;   Wilson,   pp.    264-267.      As   to   criminal    pi 
dure,   see   11    »<•    12    Vict.   c.    I-',   for  preliminary   procedure,   and 
the   rest   of   this  chapter   for   final   hearings. 


850  EXAMINATION  OF  WITNESSES. 

(b)  under  a  commission,  (b) 

(c)  before  any  officer  of  the  Court  or  any  other 
person  or  persons  appointed  for  that  purpose  by 
the  Court  or  a  judge  under  the  Judicature  Act, 
1875,  Order  XXXVII,  4. 

Oral  evidence  taken  upon  a  preliminary  hear- 
ing may,  in  the  cases  specified  in  11  &  12  Vict.  c. 
42,  s.  17,  30  &  31  Vict.  c.  35,  s.  6,  and  17  &  18 
Vict.  c.  104,  s.  270,  be  recorded  in  the  form  of  a 
deposition,  which  deposition  may  be  used  as  doc- 
umentary evidence  of  the  matter  stated  therein 
in  the  cases  and  on  the  conditions  specified  in 
Chapter  XVII. 

Oral  evidence  taken  in  open  court  must  be  taken 
according  to  the  rules  contained  in  this  chapter 
relating  to  the  examination  of  witnesses. 

(c)Oral  evidence  taken  under  a  commission 
must  be  taken  in  the  manner  prescribed  by  the 
terms  of  the  commission. 

(d)Oral  evidence  taken  under  (c)  must  be 
taken  in  the  same  manner  as  if  it  were  taken  in 
open  court;  but  the  examiner  has  no  right  to  de- 
cide on  the  validity  of  objections  taken  to  partic- 

(b)  The  law  as  to  commissions  to  take  evidence  is  as 
follows:  The  root  of  it  is  13  Geo.  III.  c.  63.  Section  40  of 
this  Act  provides  for  the  issue  of  a  commission  to  the  Su- 
preme Court  of  Calcutta  (which  was  first  established  by 
that  Act)  and  the  corresponding  authorities  at  Madras  and 
Bombay  to  take  evidence  in  cases  of  charges  of  misdemeanor 
brought  against  Governors,  &c,  in  India  in  the  Court  of 
Queen's  Bench.  S.  42  applies  to  parliamentary  proceedings, 
and  s.  44  to  civil  cases  in  India.  These  provisions  have  been 
extended  to  all  the  colonies  by  1  Will.  IV.  c.  22,  and  so  far 
as  they  relate  to  civil  proceedings  to  the'  world  at  large. 
3  &  4  Vict.  c.  105,  gives  a  similar  power  to  the  Courts  at 
Dublin. 

(c)  T.   E.   s.    491. 


I 


EXAMINATION  OF  WITNESSES.  851 

ular  questions,  but  must  record  the  questions,  the 
fact  that  they  were  objected  to,  and  the  answers 
given. 

(e)Oral  evidence  given  on  affidavit  must  be 
confined  to  such  facts  as  the  witness  is  able  of  his 
own  knowledge  to  prove,  except  on  interlocutory 
motions,  on  which  statements  as  to  his  belief  and 
the  grounds  thereof  may  be  admitted.  The  costs 
of  every  affidavit  unnecessarily  setting  forth  mat- 
ters of  hearsay  or  argumentative  matter,  or 
copies  of  or  extracts  from  documents,  must  be 
paid  by  the  party  filing  them. 

(f)When  a  deposition,  or  the  return  to  a  com- 
mission, or  an  affidavit,  or  evidence  taken  before 
an  examiner,  is  used  in  any  court  as  evidence  of 
the  matter  stated  therein,  the  party  against  whom 
it  is  read  may  object  to  the  reading  of  any  thing 
therein  contained  on  any  ground  on  which  he 
might  have  objected  to  its  being  stated  by  a  wit- 
ness examined  in  open  court,  provided  that  no 
one  is  entitled  to  object  to  the  reading  of  any  an- 
swer to  any  question  asked  by  his  own  represen- 
tative on  the  execution  of  a  commission  to  take 
evidence,  (g) 


fd)    T.    E.    s.    1283. 

(e)  Judicature  Act,   1875,   Order   XXXVII.,    4. 

(f)  T.   E.   s.    491;   Hutchinson   v.   Bernard,   2   Moo.   &   Rob.   1. 

(g)  [The  several  provisions  of  this  article  refer  to  matters 
of  practice,  which  are  presumed  to  be  generally  similar  in 
the  different  jurisdictions  of  this  country.  The  particular 
differences  would  hardly  find  an  appropriate  place  in  this 
treatise.  The  matter  of  depositions  is  taken  up  in  Articles 
1  II.    142,    143.] 


852  EXAMINATION  OP  WITNESSES. 

Article  126.* 

examination   in   chief,   cross-examination,  and 
re-examination. 

Witnesses  examined  in  open  court  must  be  first 
examined  in  chief,  then  cross-examined,  and  then 
re-examined. 

Whenever  any  witness  has  been  examined  in 
chief,  or  has  been  intentionally  sworn,  or  has 
made  a  promise  and  declaration  as  hereinbefore 
mentioned  for  the  purpose  of  giving  evidence,  (a) 
the  opposite  party  has  a  right  to  cross-examine 
him;  but  the  opposite  party  is  not  entitled  to 
cross-examine  merely  because  a  witness  has  been 
called  to  produce  a  document  on  a  subpoena  duces 
tecum,  or  in  order  to  be  identiefid.  After  the 
cross-examination  is  concluded,  the  party  who 
called  the  witness  has  a  right  to  re-examine  him. 

The  Court  may  in  all  cases  permit  a  witness  to 
be  recalled  either  for  further  examination  in  chief 
or  for  further  cross-examination,  and  if  he  does 
so,  the  parties  have  the  right  of  further  cross-ex- 
amination and  further  re-examination  respec- 
tively, (b) 

(a)  [This  provision   is  peculiar  to   the  English   practice.] 

(b)  [The  judge  may  recall  a  witness  at  any  stage  of  the 
proceedings,  and  examine  or  cross-examine  at  his  discre- 
tion, Rex  v.  Watson,  6  C.  &  P.  653;  may  or  may  not,  at  his 
discretion,  advise  a  witness  of  his  right  to  refuse  to  answer, 
Com.  v.  Howe,  13  Gray  (Mass.),  26;  may  limit  the  number 
of  impeaching  or  supporting  witnesses,  Bunnell  v.  Butler, 
23  Conn.  65;  may,  at  a  preliminary  hearing  to  determine 
whether  the  conditions  exist  upon  which  evidence  offered 
becomes     admissible,     refuse     to     permit     cross-examination, 

*See   Note  "at   end  of  Article   128. 


EXAMINATION  OF  WITNESSES.  853 

If  a  witness  dies,  or  becomes  incapable  of  being 
further  examined  at  any  stage  of  his  examination, 
the  evidence  given  before  he  became  incapable  is 
good.(c) 

If  in  the  course  of  a  trial  a  witness  who  was 
supposed  to  be  competent  appears  to  be  incompet- 
ent, his  evidence  may  be  withdrawn  from  the  jury, 
and  the  case  may  be  left  to  their  decision  inde- 
pendently of  it.  (d) 

EXAMINATION   IN  CHIEF. 

Colorado.  It  is  an  elementary  rule,  that  where  a  question 
on  direct  examination  is  not  introductory  but  embraces 
the  very  substance  of  the  issue  the  court  is  trying  and 
calling  for  an  answer  which,  if  accepted  by  the  court, 
would  be  a  complete  determination  of  the  cause,  it  is 
improper. — Combs  v.  Agricultural  Ditch  Co.,  17  Colo.  146, 
28  P.  966. 

The  form  of  questions  and  method  of  examination  of 
witnesses  are  largely  within  the  discretion  of  the  trial 
court,  and  unless  there  is  an  arbitrary  abuse  of  such  dis- 
cretion, the  trial  court's  action  in  such  matters  will  not 
be  held  to  be  reversible  error. — Burson  v.  Bogart,  18 
Colo.   App.  449,   72   P.   605. 


Com.  v.  Morrell,  99  Mass.  542;  and  may  limit  the  cross-ex- 
amination upon  facts  otherwise  immaterial,  for  the  purpose 
of  testing  the  witness's  bias,  credibility,  and  judgment,  Com. 
v.  hymn,  113  Mass.  152.  i'n.ss-cx:uiiination  largely  in  dis- 
cretion of  Court.  Ellsworth  v.  Potter,  41  Vt.  685;  Comstock 
v  Smith,  SO  Mich.  338;  re-examination  as  to  new  matter  also 
in  Court's  discretion,  Wickenkamp  v.  Wlckenkamp,  77  111. 
!»2.  So  of  re-cross  examination,  Thornton  v.  Thornton,  39 
Vt.  122.  So  of  subsequent  examinations.  People  v.  Keith, 
50   Cal.    137;    Koenig    v.    Bauer,    57    Pa.    St.    168.] 

(c)  k.   \     i l i ii.    i    Jebb,  i'.  C.    i-'::.     The  Judges  compared 

the  case  to  that  of  a  'lying  declaration,  which  is  admitted 
though  there  tan  be  no  cross-examination. 

(d)  R.   v.  Whitehead,   L.   R.   1   C.  C.   R.   33. 


854  EXAMINATION  OF  WITNESSES. 

Nebraska.  Duplicate  testimony  by  different  witnesses 
upon  a  given  point  is  unnecessary  and  improper  and 
should  be  excluded,  but  its  admission  is  error  without 
prejudice. — Lamb  v.  Briggs,  22  Neb.  138,  34  N.  W.  217. 
The  practice  of  permitting  two  counsel  on  the  same  side 
to  examine  a  witness  is  not  commended,  as  a  rule,  but 
the  privilege  nevertheless  rests  solely  within  the  discre- 
tion of  the  trial  court.— Citizens'  Bank  v.  Fromholz,  64 
Neb.  284,  89  N.  W.  775. 

North  Dakota.  Questions  which,  standing  alone  or  hav- 
ing no  bearing  on  the  case  at  issue  and  therefore  incom- 
petent, may  be  proper  as  preliminary  questions. — State 
v.  Kent  (Pancoast),  5  N.  D.  516,  67  N.  W.  1052. 

CROSS-EXAMINATION. 

Arkansas.  A  defendant  has  no  right  to  cross-examine  a 
witness  summoned  by  the  state  and  sworn  but  not  exam- 
ined. If  he  wants  his  testimony  he  must  make  him  his 
own  witness. — Austin  v.  State,  14  Ark.  555. 
California.  The  fact  that  plaintiff  examined  a  witness  in 
chief  out  of  the  proper  order,  though  there  was  no  objec- 
tion made,  did  not  deprive  defendant  the  privilege  of 
cross-examination  of  witness. — Graham  v.  Larimer,  83 
Cal.  173,  23  P.  286. 

Nevada.  Every  defendant  in  a  criminal  case  is  entitled 
to  a  full  and  perfect  cross-examination  of  every  witness 
who  testifies  against  him. — State  v.  Larkin,  11  Nev.  314. 

QUESTIONS  BY  COURT. 

Colorado.  That  a  court  participated  in  the  cross-exam- 
ination of  a  witness  is  not  error,  unless  it  can  be  shown 
that  the  complaining  party  was  prejudiced  thereby. — 
Baur  v.  Beall,  14  Colo.  383,  23  P.  345. 

Kansas.  It  is  the  purpose  of  a  criminal  trial  to  ascertain 
the  truth  of  the  matters  under  investigation,  and  it  is 
part  of  the  business  of  the  judge  to  see  that  this  is  at- 
tended to.  He  is  not  a  dumb  and  maskfaced  moderator 
over  the  contest  between  counsel.  He  is  a  vital,  integral 
factor  in  the  discovery  of  the  facts,  and  whenever  in  his 
judgment  the  attorneys  are  not  drawing  out  the  truth,  he 


EXAMINATION  OF  WITNESSES.  855 

is  privileged  to  ask  witnesses  questions  upon  cross-exam- 
ination.—State  v.  Keehn,  85  Kan.  765,  118  P.  851. 
Oklahoma.  It  is  not  error  for  the  judge  to  interrogate  a 
witness  during  the  progress  of  a  case  since  it  is  his  duty 
to  elicit  the  evidence  upon  relevant  and  material  points 
involved.— De  Ford  v.  Painter,   3  Okl.  80,  41  P.  96. 

ORDER  OF   INTRODUCTION   OF  TESTIMONY. 

The  order  of  the  introduction  of  testimony  rests  largely 
within  the  sound  discretion  of  the  trial  court: 
Arkansas:  Davey  v.  State,  99  Ark.  547,  139  S.  W.  629. 
California:  Land  v.  Johnston,  156  Cal.  253,  104  P.  449 
(plaintiff  allowed  to  reopen  case  and  introduce  further 
testimony  after  the  case  had  been  submitted  and  before 
any  decision  had  been  rendered,  defendant  not  being  de- 
prived of  any  opportunity  to  reply  to  the  additional  evi- 
dence). 

Colorado:  Newkirk  v.  Noble,  8  Colo.  App.  276,  46  P.  15 
(plaintiff  allowed  to  introduce  testimony  after  case  was 
closed) ;  Burnell  (McCreery)  v.  Morrison,  46  Colo.  533, 
105  P.  876  (introduction  of  letters  of  alleged  agent  before 
agency  had  been  established);  Koch  v.  City  and  County 
of  Denver,  24  Colo.  App.  406,  133  P.  1119  (eliciting  from 
an  officer  of  defendant  on  re-examination  an  admission 
of  plaintiff,  without  laying  any  foundation). 
Kansas:  Michner  v.  Ford,  78  Kan.  837,  98  P.  273  (appli- 
cation to  introduce  further  testimony  refused  after  the 
court  takes  the  case  under  advisement). 
Montana:  Noyes  v.  Clifford,  37  Mont.  138,  94  P.  842  (in- 
troduction of  patent  to  mining  claim  and  facts  touching 
character  of  the  discovery  made  and  the  steps  taken  to 
complete  the  location  admitted  before  it  had  been  shown 
that  the  vein  or  lode  was  known  to  exist  at  the  date  of 
application   of   patent). 

North  Dakota:  State  v.  Tolley,  23  N.  D.  284,  136  N.  W. 
784    (cross-examination). 

Oregon:  Crosby  v.  Portland  Ry.  Co.,  53  Or.  496,  100  P. 
300  (injury  to  plaintiff  crossing  defendant's  track  by  com- 
ing in  contact  with  sagging  wire;   though  properly  a  part 


856  EXAMINATION  OF  WITNESSES. 

of  her  case  in  chief,  plaintiff  was  permitted  in  rebuttal 
to  introduce  her  shoe  in  evidence,  not  only  on  account 
of  its  slightly  burned  appearance,  but  for  the  purpose  of 
disclosing  the  nails  therein,  which  the  evidence  discloses 
may  have  served  as  a  conductor  of  an  electrical  current 
through  their  contact  with  the  nails  in  the  boards  be- 
tween the  rails  where  plaintiff  stood  at  the  time  of  receiv- 
ing the   shock). 

Washington.  Error  cannot  be  predicated  on  the  fact  that 
the  trial  court  enforces  technical  rules  governing  the  ad- 
mission of  evidence. — Anderson  v.  Globe  Navigation  Co., 
57  Wash.  502,  107  P.  376. 

EXCLUSION    OF    WITNESSES. 

Arkansas.  It  is  within  the  discretion  of  the  court  whether 
witnesses  shall  be  excluded  from  the  court  room. — Vance 
v.  State,  56  Ark.  402,  19  S.  W.  1066. 

California.  The  circumstance  of  a  witness  in  a  criminal 
action  having  remained  in  court  and  heard  the  evidence 
of  other  witnesses,  in  disobedience  of  an  order  excluding 
him  from  the  courtroom  while  other  witnesses  were  under 
examination,  is  no  ground  for  rejecting  his  testimony. 
The  witness  in  such  case  may  be  punished  for  contempt 
in  disobeying  the  order;  but  a  party  cannot,  without 
fault  on  his  part,  be  deprived,  for  such  disobedience,  of 
the  testimony  of  the  witness. — People  v.  Boscovitch,  20 
Cal.   436. 

Kansas.  It  is  not  error  in  a  criminal  case  for  the  court 
to  receive  the  evidence  of  a  witness,  notwithstanding  the 
fact  that  he  has  violated  an  order  of  the  court  to  remain 
outside  of  the  courtroom  while  other  witnesses  are  tes- 
tifying. He  may  be  punished  for  disobeying  a  rule  of  the 
court,  but  the  state  or  the  defendant  should  not  be  de- 
prived of  his  evidence. — State  v.  Falk,  46  Kan.  498,  26  P. 
1023. 

Oregon.  It  is  error  to  reject  the  testimony  of  a  witness 
on  the  ground  that  he  was  present  in  the  courtroom,  in 
violation  of  an  order  of  the  court  excluding  the  witnesses 
during  the  trial,  unless  it  appears  that  the  party  calling 
him  was  in  complicity  with  him.     The  witness,  however, 


EXAMINATION  OF  WITNESSES.  857 

may  be  punished  for  contempt  for  violation  of  such  order. 
—Hubbard  v.  Hubbard,  7  Or.  42. 

Where  two  were  sued  upon  a  note,  and  both  expected 
to  testify  in  the  suit,  it  was  error  for  the  court  to  include 
one  of  them  in  an  order  for  the  exclusion  of  all  witnesses 
in  the  case.— Schneider  v.  Haas,  14  Or.  174,  12  P.  236. 

RECALLING  WITNESS. 

California.  Whether  a  witness  may  be  recalled  and  re- 
examined as  to  matters  about  which  he  has  already  been 
examined  is  one  left,  by  statute,  to  the  sound  discretion 
of  the  court.— Rea  v.  Wood,  105  Cal.  314,  38  P.  899. 

Article  127. 

to  what   matters   (  koss-kxa.m  in ation   and   bbs-examination 
must  be  directed. 

The  examination  and  cross-examination  must 
relate  to  facts  in  issue  or  relevant  or  deemed  to 
be  relevant  thereto,  but  the  cross-examination 
need  not  be  confined  to  the  facts  to  which  the 
witness  testified  on  his  examination  in  chief,  (a) 

The  re-examination  must  be  directed  to  the  ex- 
planation Of  matters  referred  to  in  cross-examina- 
tion ;  and  if  new  matter  is,  by  permission  of  the 
Court,  introduced  in  re-examination,  the  adverse 
party  may  further  cross-examine  upon  that  mat- 
ter, (b) 

CROSS-EXAMINATION. 

Scope   of    Examination. 

Arkansas.     In  an  action  for  injuries  at  a  crossing,  where 

a  witness  testified  that  the  bell  of  the  engine  was  rung 

all  the  while  that  the  train  was  moving  towards  the  cross- 

(a)  L-   Wigmore   Ev.,   S    1362  et  seq.] 

(b)  [3   Wigmore   Ev.,    §§   1896,   1898.] 


858  EXAMINATION  OF  WITNESSES. 

ing,  it  was  competent  to  cross-examine  him  in  detail 
about  who  was  in  the  engine  and  what  was  being  done. 
—St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Fitzhugh,  121  Ark.  633, 
180  S.  W.  490. 

Upon  a  prosecution  for  the  unlawful  sale  of  liquors,  it 
was  proper  cross-examination  for  the  prosecuting  attorney 
to  ask  defendant  if  he  had  not  been  convicted  before  of 
selling  whisky,  in  view  of  the  fact  that  defendant  denied 
that  the  beverage  sold  by  him  was  intoxicating. — Seibert 
v.  State,  121  Ark.  258,  180  S.  W.  990. 

California.  Where  a  defendant  testified  that  he  indorsed 
the  note  sued  on  after  delivery  and  for  accommodation, 
it  is  proper  cross-examination  to  inquire  whether  he  was 
not  at  about  that  time  indorsing  a  great  many  notes  for 
the  same  maker. — Pacific  Portland  Cement  Co.  v.  Rein- 
ecke,  30  Cal.  App.  501,  158  P.  1041. 

Idaho.  It  is  a  general  rule  that  a  defendant  should  not 
open  his  case  by  a  cross-examination  of  plaintiff's  wit- 
nesses, but  the  application  of  the  rule  must  necessarily 
rest  largely  in  the  sound  discretion  of  the  trial  court. — 
Hopkins  v.  Utah  Northern  Ry.  Co.,  2  Ida.  300,  13  P.  343. 
Kansas.  There  should  be  considerable  latitude  allowed 
in  cross-examination. — State  v.  Patterson,  98  Kan.  197, 
157  P.   437. 

Nebraska.  In  a  prosecution  for  bastardy  where  the  com- 
plaining witness  had  testified  that  defendant  had  begotten 
her  with  child  while  they  were  buggy  riding,  on  a  certain 
day,  and  defendant  had  been  asked  if  he  had  had  con- 
nection with  witness  at  such  time  and  place  and  had  an- 
swered in  the  negative,  and  defendant's  attorney  had 
sought  to  limit  the  cross-examination  to  the  single  ques- 
tion whether  or  not  defendant  .had  had  connection  with 
witness  on  that  day  and  particular  time  and  place,  it  was 
held  that  any  question  was  proper  on  cross-examination 
in  relation  to  the  conduct  of  the  defendant  with  witness 
on  that  day  or  about  that  time  which  would  tend  to  show 
his  guilt  or  exonerate  him. — Planck  v.  Bishop,  26  Neb.  589, 
42  N.  W.  723. 

New  Mexico.  The  general  rule  upon  the  scope  of  cross- 
examination,  sometimes  called  the  American  rule,  is  that 


EXAMINATION  OF  WITNESSES.  859 

the  examination  can  only  relate  to  the  facts  and  circum- 
stances connected  with  the  matters  stated  on  direct  ex- 
amination.—State  v.  Carter,  21  N.  M.  166,  153  P.  271. 

To  test  the  credibility  of  a  witness,  it  is  permissible, 
upon  cross-examination,  to  investigate  the  situation  of 
the  witness  with  respect  to  the  parties  and  to  the  subject 
of  the  litigation,  his  interest,  motives,  inclinations,  and 
prejudices,  his  means  of  obtaining  a  correct  and  certain 
knowledge  of  the  facts  to  which  he  bears  testimony,  the 
manner  in  which  he  used  those  means,  his  powers  of  dis- 
cernment, memory,  and  description. — State  v.  Carter,  21 
N.  M.  166,  153  P.  271. 

Oregon.  Where  plaintiff  was  called  and  testified  in  chief 
concerning  a  loan,  and  discloses  only  so  much  of  the 
transaction  as  was  favorable  to  him  and  conceals  the 
facts  which  were  against  him  and  leaves  the  inference 
that  it  was  a  legitimate  and  legal  contract,  it  was  within 
the  limits  of  strict  cross-examination  for  the  defendant 
to  bring  out  the  remaining  facts  concerning  the  loan  and 
the  circumstances  under  which  it  was  made. — Ah  Doon 
v.   Smith.  25  Or.  89,  34  P.  1093. 

South  Dakota.  Undoubtedly  a  cross-examination  of  a 
witness  cannot  go  beyond  the  subject-matter  of  the  exam- 
ination in  chief,  but  it  ought  to  be  allowed  a  very  free 
range  within  it.  In  order  to  do  this,  a  witness  may  be 
sifted  as  to  every  fact  touching  the  matters  as  to  which 
he  testifies,  so  that  his  temper,  leanings,  relations  to  the 
parties  and  the  cause,  his  intelligence,  the  accuracy  of 
his  memory,  his  disposition  to  tell  the  truth,  his  means 
of  knowledge,  his  general  and  particular  acquaintance 
with  the  subject-matter  may  be  tested. — Wendt  v.  Chi- 
cago, St.  P.  M.  &  O.  Ry.  Co.,  4  S.  D.  476,  57  N.  W.  226. 

Texas.  Upon  a  trial  of  defendant  for  the  murder  of  his 
wife's  paramour,  where  the  wife  was  introduced  as  a 
witness  and  admitted  her  adulterous  relations  with  de- 
ceased, her  testimony  on  cross-examination  should  be 
limited  strictly  to  matters  brought  out  on  direct  examina- 
tion as  to  her  relations  with  deceased. — Mitchell  v.  State, 
(Tex.  Cr.  R.),  179  S.  W.  116. 


860  EXAMINATION  OF  WITNESSES. 

Where  the  wife  of  defendant,  on  trial  for  manslaughter, 
was  placed  upon  the  stand  by  her  husband  and  testified 
that  deceased  had  had  sexual  intercourse  with  her  while 
she  was  under  his  hypnotic  influence,  it  was  proper  to  ask 
witness  on  cross-examination  not  only  what  her  husband 
had  said  when  such  information  had  been  first  communi- 
cated to  him,  but  how  he  was  affected  by  it,  and  other 
matter  proper  and  material  to  the  main  testimony  given, 
and  for  the  further  purpose  of  laying  a  predicate  for  her 
impeachment. — Tyrone  v.  State,  (Tex.  Cr.  R.),  180  S.  W. 
125. 

Where  defendant  stated  on  direct  examination  that  he 
was  an  Odd  Fellow,  it  was  proper  cross-examination  to 
ask  him  if  he  said  he  was  an  Odd  Fellow,  but  improper 
to  ask  him  when  he  had  been  expelled. — Ingrain  v.  State, 
(Tex.  Cr.   R.),   182  S.  W.  290. 

Washington.  Where,  in  an  action  for  malicious  prose- 
cution, plaintiff  offers  no  evidence  of  reputation,  cross- 
examination  as  to  specific  acts  of  wrongdoing  is  improper. 
— Finigan  v.  Sullivan,  65  Wash.  625,  118  P.  888. 

It  was  not  error  to  sustain  objection  to  a  question  on 
cross-examination  which  was  argumentative  and  not  based 
upon  facts  in  evidence. — Marks  v.  City  of  Seattle,  88 
Wash.  61,  152  P.  706. 

Collateral   Inquiry. 

The  extent  of  cross-examination  upon  collateral  or  im- 
material matters  is  largely  within  the  discretion  of  the 
trial  judge,  and  it  was  not  error  to  limit  the  examination 
to  the  issues  involved.— State  v.  Mox  Mox,  28  Ida.  176, 
152  P.  802;  Just  v.  Idaho,  etc.,  Co.,  16  Ida.  639,  102  P. 
381;  State  v.  Reilly.  25  N.  D.  339,  141  N.  W.  720;  Gatze- 
meyer  v.  Peterson,  68  Neb.  832,  94  N.  W.  974. 
California.  Cross-examination  on  collateral  matters  as  to 
which  there  was  no  direct  examination  is  not  allowable. 
(Trial  for  murder  of  a  Japanese.  Question  to  widow  of 
deceased  whether  there  was  not  a  Japanese  arrested  by 
reason  of  his  being  at  deceased's  place  of  business  and 
disturbing  the  peace.)— People  v.  Ung  Sing,  171  Cal.  83, 
151  P.  1145. 


EXAMINATION  OF  WITNESSES.  861 

Colorado.  It  is  elementary,  that  if  a  party  inquires  of  a 
witness  as  to  immaterial  matters,  he  must  accept  the  an- 
swer and  is  not  permitted  to  raise  an  issue  therefrom  by 
introducing  evidence  to  contradict  it. — Bulger  v.  People, 
60  Colo.   165,   151  P.   937. 

Idaho.  The  extent  of  cross-examination  upon  collateral 
or  immaterial  matters  as  largely  within  the  discretion  of 
the  trial  judge,  and  it  cannot  be  said  that  the  court  in 
this  case  committed  error  in  limiting  counsel  for  the  ap- 
pellant in  the  cross-examination  of  respondent's  witness, 
since  such  limitation  was  intended  to  confine  the  investi- 
gation to  the  issues  involved. — State  v.  Mox  Mox,  28  Ida. 
176,  152  P.  802. 

Kansas.  The  extent  to  which  a  witness  may  be  cross- 
examined  on  matters  irrelevant  and  collateral  to  the  main 
issue,  with  a  view  of  impairing  his  credibility,  depends 
upon  the  appearance  and  conduct  of  the  witness,  and  all 
the  circumstances  of  the  case,  and  necessarily  rests  In 
the  sound  discretion  of  the  trial  court;  and  only  where 
there  has  been  a  clear  abuse  of  that  discretion  will  error 
lie.— State  v.  Pfefferle,  36  Kan.  90,  12  P.  406. 
Montana.  In  an  action  upon  a  policy  of  insurance,  in 
which  there  was  no  issue  made  by  the  pleadings  as  to 
the  cause  of  death  of  the  beneficiary,  it  was  not  proper 
cross-examination  of  plaintiff  to  have  her  identify  papers 
containing  proof  of  death  of  her  husband,  the  beneficiary, 
for  the  purpose  of  showing  the  cause  of  his  death  from 
tuberculosis  and  that  therefore  his  statements  when  the 
application  was  signed,  that  he  was  in  good  health  were 
untrue. — Pelican  v.  Mutual  Life  Insurance  Co.,  44  Mont. 
277,  119  P.  778. 

North  Dakota.  It  was  error  to  ask  defendant  on  cross- 
examination  whether  he  had  not  attempted  to  have  plain- 
tiff arrested  for  sending  him  a  dunning  letter,  without  first 
giving  the  witness  a  chance  to  admit  his  bias  and  preju- 
dice against  the  plaintiff. — Paulson  v.  Reeds,  33  N.  D. 
141.  156  N.  W.   1031. 

Texas.  A  witness  may  be  cross-examined  by  asking  if 
he  is  not  under  indictment  for  theft.— Carroll  v.  State,  32 
Tex.  Cr.  R.  431,  24  S.  W.   100. 


862  EXAMINATION  OF  WITNESSES. 

Washington.  A  question  asked  a  witness  on  cross-examin- 
ation, "Are  you  not  the  notorious  Tuck  Rhodes,  who  was 
tarred  and  feathered  at  Gray's  Harbor  and  run  out  of  the 
country?"  is  improper. — State  v.  Mann,  39  Wash.  144,  81 
P.    561. 

Extent  of  Cross-Examination. 

Arkansas.  Much  latitude  is  allowed  on  cross-examina- 
tion of  a  witness  who  has  given  material  testimony. — 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Fitzhugh,  121  Ark.  633, 
180  S.  W.  490. 

California.  Where  a  fact  denied  by  the  defendant  in  his 
testimony  covers  the  whole  case  or  any  branch  of  the 
case,  the  matter  to  be  tested  by  cross-examination  is  the 
truth  or  falsity  of  that  denial,  just  the  same  as  if  it  had 
been  a  denial  of  some  particular  detail  of  fact.  The  peo- 
ple have  the  right  on  cross-examination  to  draw  out  any- 
thing which  will  tend  to  contradict  the  evidence  of  the 
defendant  adduced  on  his  direct  examination  or  weaken 
or  modify  its  effect.  (In  a  prosecution  for  burning  and 
destroying  property  insured,  one  R.  testified  to  some  con- 
versations with  accused  looking  towards  the  transaction, 
which  accused,  taking  the  stand  in  his  own  defense,  de- 
nied. The  people  were  permitted  on  cross-examination 
not  only  to  ask  as  to  such  preparations  and  conversations, 
but  also  as  to  other  statements  made  at  other  times  to  R.) 
—People  v.  Turco,  29  Cal.  App.  608,  156  P.  1001. 

Extraneous  Matters  and  Affirmative  Defenses. 

The  rule  is  well  settled  that  where  a  witness  is  allowed 
to  be  cross-examined  on  matters  extraneous  to  those 
brought  out  on  direct  examination,  he  is  regarded  as  the 
witness  of  the  party  examining  him  and  is  so  far  concluded 
by  it  as  to  prevent  his  contradiction.  If  he  wishes  to  ex- 
amine the  witness  as  to  such  extraneous  matters  he  must 
do  so  by  making  the  witness  his  own  and  question  him 
as  such  in  the  subsequent  progress  of  the  case. — Tourte- 
lottp  v.  Brown,  1  Colo.  App.  408,  29  P.  130;  Boggs  v. 
Thompson,  13  Neb.  403,  14  N.  W.  393;  Hurlbut  v.  Hall, 
39  Neb.  889,  58  N.  W.  538. 


EXAMINATION  OF  WITNESSES.  863 

Montana.  In  an  action  for  negligence  of  master,  plaintiff's 
failure  to  complain  as  to  the  dangerous  character  of  the 
work  is,  if  material,  a  matter  of  defense,  and  not  a  proper 
subject  of  cross-examination. — Wallace  v.  Chicago,  M.  & 
P.  S.  Ry.  Co.,  52  Mont.  345,  157  P.  955. 
Nebraska.  If  a  party,  in  cross-examination  of  witness 
questions  him  as  to  matters  not  brought  out  on  examina- 
tion in  chief,  he  thereby  makes  the  witness  his  own,  and 
in  this  particular  cannot  cross-examine  him. — Clough  v. 
State,  7  Neb.  320. 

New  Mexico.  When  a  party,  on  cross-examination  of  a 
witness,  seeks  to  draw  out  new  matter  not  inquired  of  on 
examination  in  chief,  he  makes  the  witness  his  own  for 
that  purpose,  and  the  opposite  party  may  insist  upon 
cross-examining  the  witness  as  to  such  new  matter. — 
State  v.  McKnight,  21  N.  M.  14,  152  P.  76. 
South  Dakota.  No  rule  is  better  settled  than  that  a  de- 
fendant cannot,  on  cross-examination,  introduce  his  own 
affirmative  defense  unless  the  witness  has  in  his  direct 
examination  been  interrogated  as  to  matters  concerning 
which  he  is  cross-examined. — First  Nat.  Bank  v.  Enge- 
bretson,  28  S.  D.  185,  132  N.  W.  786;  First  Nat.  Bank  v. 
Smith,  8  S.  D.  101,  65  N.  W.  439. 

A  party  who  has  not  opened  his  own  case  will  not  be 
allowed  to  introduce  it  to  the  jury  by  cross-examining  wit- 
nesses of  the  adverse  party,  though,  after  opening  it,  he 
may  cross-examine  them  for  that  purpose.  But  the  rule  is 
wholly  different  when  all  that  the  defendant,  in  cross-ex- 
amination, wishes  to  disprove,  by  plaintiff's  witness,  is 
the  very  case  that  witness  has  made. — Wendt  v.  Chicago, 
St.  P.  M.  &  O.  Ry.  Co.,  4  S.  D.  476,  57  N.  W.  226. 

Discretion  of  Court. 
Arkansas.  Where  an  exhaustive  cross-examination  of  a 
prosecuting  witness  has  been  permitted  fully  sufficient  to 
test  her  credibility  and  to  show  her  interest  in  the  prose- 
cution and  the  motive  which  prompted  her  to  give  her 
testimony,  the  extent  of  the  cross-examination  was  with- 
in the  discretion  of  the  court. — Dawson  v.  State,  121  Ark. 
211.  180  S.  W.  761. 


864  EXAMINATION  OF  WITNESSES. 

California.  Where  a  question  has  been  repeatedly  an- 
swered by  a  witness  on  further  cross-examination,  it  is 
not  an  abuse  of  discretion  for  the  court  to  stop  further 
examination  to  elicit  the  same  reply. — People  v.  Lim  Foon, 
29  Cal.  App.  270,  155  P.  477. 

Further  Cross-Examination. 
New  Mexico.  Whether  questions  upon  further  cross-ex- 
amination are  to  be  permitted  of  facts  brought  out  on  di- 
rect examination,  is  a  matter  within  the  discretion  of  the 
court.— State  v.  Carter,  21  N.  M.  166,  153  P.  271. 
Washington.  It  was  not  error  to  sustain  an  objection  to 
a  question  upon  further  cross-examination  which  had  al- 
ready been  covered  by  witness  on  prior  cross-examination. 
—Marks  v.  City  of  Seattle,  88  Wash.  61,  152  P.  706. 

Cross-Examination  on  New  Matters  Introduced  on  Cross- 
Examination  By  Adverse  Party. 
New  Mexico.  Where  a  party  on  cross-examination  of  a 
witness  seeks  to  draw  out  new  matter  not  inquired  of  on 
the  examination  in  chief,  he  makes  the  witness  his  own 
for  that  purpose,  and  the  opposite  party  may  insist  upon 
a  cross-examination.  (Homicide,  defense  being  rape  on 
wife  of  absent  husband,  state  contending  illicit  relations 
and  disclosure  to  husband  not  made  until  wife  found  her- 
self in  a  condition  of  pregnancy,  a  witness  for  state  tes- 
tifying to  statement  of  wife  that  she  had  been  taking 
drugs  to  relieve  such  condition.  Cross-examination  to 
show  that  wife  was  in  such  nervous  state  at  time  of  al- 
leged statement  that  hypodermic  injections  had  to  be 
given  by  physician  to  quiet  her  so  that  she  could  not  have 
made  the  statement.  State  had  the  right  to  show  on 
redirect  examination  that  such  nervous  condition  was  due 
to  the  use  of  drugs  for  the  purpose  indicated.) — State  v. 
McKnight,  21  N.  M.  14,  153  P.  76. 

RE-EXAMINATION. 
Nebraska.  As  a  rule,  re-examination  of  a  witness  should 
be  limited  to  the  points  arising  out  of  the  cross-examina- 
tion, but  its  enforcement  rests  entirely  in  the  discretion 
of  the  trial  court.— Schlencker  v.  State,  9  Neb.  241,  1  N. 
W.  857. 


EXAMINATION  OF  WITNESSES.  865 

North  Dakota.  Where  new  matter  is  brought  out  on 
cross-examination  of  a  witness,  the  adverse  party  is  en- 
titled to  re-examine  the  witness  regarding  such  new  mat- 
ter.—Erickson  v.  Wiper,  33  N.  D.  193,  157  N.  W.  592. 
Oregon.  It  was  proper  to  permit  a  witness  on  redirect 
examination  to  give  testimony  which  might  refute  any 
inference  which  may  have  been  created  in  the  minds  of 
the  jury  by  a  question  asked  on  cross-examination. — 
Willis  v.  Horticultural  Fire  Relief,  77  Or.  621,  152  P.  259. 

Article  128. 
leading  questions. 

Questions  suggesting  the  answer  which  the  per- 
son putting  the  question  wishes  or  expects  to  re- 
ceive, or  suggesting  disputed  facts  as  to  which  the 
witness  is  to  testify,  must  not,  if  objected  to  by 
the  adverse  party,  be  asked  in  an  examination  in 
chief,  or  a  re-examination,  except  with  the  per- 
mission of  the  Court,  but  such  questions  may  be 
asked  in  cross-examination,  (a) 

LEADING   QUESTIONS. 
In  General. 

California.  When  a  part  of  a  conversation  is  given  on 
direct  examination  or  upon  cross-examination,  the  oppo- 
sing side  may  bring  out  all  of  the  conversation  which  may 
be  material  to  the  issues  involved,  and  if  the  memory  of 
the  witness,  relating  to  the  conversation  is  shown  to  be 
deficient,  leading  questions  may  be  asked  her  for  the 
purpose  of  refreshing  her  memory. — People  v.  Converse, 
28  Cal.  App.  687,  153  P.  734. 

Idaho.  Under  proper  circumstances  and  conditions,  lead- 
ing questions  are  permissible:  questions  interrogatory  in 
character;    questions   to  a  hostile   witness;    and   in   cases 

(a)    [1  Wigmore  Ev„   §§   770-773;   2  Id.,   §   915.] 


866  EXAMINATION  OF  WITNESSES. 

where  it  is  shown  that  the  witness  does  not  comprehend 
the  import  of  the  questions  propounded,  or  the  witness  is 
embarrassed. — McLean  v.  City  of  Lewiston,  8  Ida.  472, 
69  P.  478. 

Kansas.  Where  a  cause  is  tried  to  the  court,  the  fact 
that  a  question  leading  in  form  is  asked  a  witness,  was 
not  prejudicial  error  where  it  was  apparent  that  the  ques- 
tion did  not  mislead  the  court  or  prejudice  the  objecting 
party's  case. — Fullenwider  v.  Ewing,  30  Kan.  15,  1  P.  300. 
Nevada.  Where  a  witness  is  unable  to  understand  other- 
wise, it  is  discretionary  for  the  court  to  allow  leading 
questions  to  be  put  to  the  witness  on  direct  examination. 
—State  v.  Williams.  31  Nev.  360,  102  P.  974. 
Oklahoma.  That  the  ends  of  justice  be  best  served,  the 
trial  judge  may  interrogate  a  witness  in  any  form  and  to 
any  extent  he  may  deem  proper;  so  where,  from  the  nat- 
ure of  the  case,  the  mind  of  the  witness  cannot  be  directed 
to  the  subject  of  the  inquiry  without  a  particular  specifi- 
cation of  it,  leading  questions  may  be  asked  him. — Ellison 
v.  Beannabia,  4  Old.  347,  46  P.  477. 

Where  a  question  is  objectionable  as  being  leading  and 
suggestive,  an  objection  to  it  will  be  sustained.- — Mulkey 
v.   State,   5  Okl.  Cr.  75,  113  P.   532. 

Texas.  It  is  well  settled  that  it  is  permissible  to  ask  wit- 
nesses leading  questions,  when  an  omission  in  their  testi- 
mony is  evidently  caused  by  want  of  recollection  which 
a  suggestion  may  assist. — Bennett  v.  State,  (Tex.  Cr.  R.), 
181  S.  W.  197. 

What   Is   Leading  Question? 

Arizona.  A  question  to  a  witness,  "Did  Mr.  H.  deny  that 
he  agreed  to  give  Mr.  G.'s  business  his  entire  attention," 
is  leading  and  therefore  objectionable. — Green  v.  Here- 
ford. 12  Ariz.  85,  95  P.  105. 

California.  In  a  prosecution  for  murder,  it  was  not  lead- 
ing a  witness  to  ask  him  "Whom  did  you  see  watching 
around  the  house,"  referring  to  the  house  where  deceased 
was  killed —People  v.  DeWitt,  6S  Cal.  584,  10  P.  212. 
Texas.  A  leading  question  is  not  determined  by  the  form 
of  the  expression,  such  as,  "Did  or  did  not,"  which  intro- 


EXAMINATION  OF  WITNESSES.  867 

duces  it.  but  whether  it  is  so  formed  as  to  suggest  to  the 
witness  the  answer  desired. — Tinsley  v.  Carey,  26  Tex.  350. 

Sundry    Instances. 
Arkansas.     To  bring  a  witness  to  material  points  he  may 
be  lead  to  that  length  and  the  acknowledged  facts  in  the 
case  may  be  recapitulated  to  him. — Clark  v.  Moss,  11  Ark. 

736: 

Texas.  In  a  prosecution  for  murder,  where  upon  cross- 
examination  defendant's  witness  testified  that  the  killing 
occurred  about  a  certain  date,  it  was  improper  for  de- 
fendant to  ask  witness  on  redirect  examination  if  the 
killing  occurred  on  another  date,  such  question  being 
leading  in  form  and  such  as  would  inform  the  witness  that 
the  killing  had  taken  place  on  the  latter  date. — Harvey 
v.  State,  35  Tex.  Cr.  R.  545,  34  S.  W.  623. 

Where,  in  an  attempt  to  prove  the  reputation  of  de- 
ceased as  being  a  quarrelsome  and  dangerous  man,  a  wit- 
ness was  asked,  "if  he  was  acquainted  with  the  general 
reputation  of  the  deceased  for  peace  and  quietude  in  the 
vicinity  in  which  he  lived,"  it  was  not  proper  to  ask  lead- 
ing questions  as  to  the  meaning  of  such  words. — Miller 
v.  State,  36  Tex.  Cr.  R.  47.  35  S.  W.  391. 
On  Direct  Examination. 
Colorado.  While  it  is  the  rule  that  the  party  calling  a 
witness  recommends  him  as  worthy  of  credit  and  cannot 
therefore  impeach  or  cross-examine  or  discredit  him  in 
any  way,  and  must  not  ask  him  leading  questions  in  his 
examination  in  chief,  yet,  where  the  party  is  taken  by 
surprise  at  the  conduct  of  his  own  witness.  if  is  in  the 
discretion,  often  the  duty,  of  the  trial  court  to  allow  the 
party  to  put  leading  questions  to  him  as  the  only  means 
of  preventing  the  witness  from  concealing  the  truth  by 
unsatisfactory  or  evasive  answers.  And  in  extreme  cases, 
where  it  is  apparent  that  the  witness  is  giving  testimony 
contrary  to  the  reasonable  expectation  of  the  party  call- 
ing him.  BUCh  party  should  be  allowed  to  cross-examine 
the  witness  for  the  purpMe  of  refreshing  his  recollection 
with  the  view  of  modifying  his  testimony  or  of  revealing 
his  real  animus  in  the  case.— Babcock  v.  People,  13  Colo. 
515.  22  P.  817. 


868  EXAMINATION  OF  WITNESSES. 

North  Dakota.  Same  as  to  surprise  by  witness. — George 
v.  Triplett,  5  N.  D.  50,  63  N.  W.  891. 

Texas.  Upon  a  prosecution  for  rape,  where  prosecutrix 
was  a  reluctant  and  hostile  witness  for  the  state,  it  was 
proper  for  the  district  attorney  to  ask  her  leading  ques- 
tions.—Carter  v.  State,  (Tex.  Cr.  R.),  181  S.  W.  473; 
Atkison  v.  State,  (Tex.  Cr.  R.),  182  S.  W.  1099. 
Wyoming.  Upon  a  trial  for  murder,  it  was  proper  to  ask 
a  witness  leading  questions  upon  his  direct  examination 
where  it  appeared  that  he  had  given  evidence  before  a 
coroner's  jury  different  from  the  answers  to  questions 
propounded  to  him  upon  the  trial. — Hollywood  v.  State, 
19   Wyo.   493,   120   P.   471. 

Discretion  of  Court. 
When  and  under  what  circumstances  a  leading  question 
in?.y  be  put,  is  a  matter  resting  in  the  sound  discretion  of 
tho  court,  and  not  a  matter  which  can  be  assigned  for 
error.— Dinsmore  v.  State,  61  Neb.  418,  85  N.  W.  445; 
Rio  Grande  Western  Ry.  Co.  v.  Utah  Nursery  Co.,  25  Utah 
187,   70   P.   859. 

California.  The  cross-examination  of  a  witness  on  the 
trial  of  a  cause,  is  a  matter  committed  to  the  sound  dis- 
cretion of  the  court,  and,  in  the  exercise  of  that  discre- 
tion leading  questions  may  be  permitted  or  denied. — Peo- 
ple v.  Clary,  72  Cal.  59,  13  P.  77. 

New  Mexico.  It  is  well  established  that  a  court  may,  in 
its  discretion,  permit  leading  questions,  and  that  only  an 
abuse  of  that  discretion  will  warrant  making  it  reversible 
error.— Territory  v.  Meredith,  14  N.  M.  288,  91  P.  731. 
Oregon.  The  allowance  of  leading  questions  rests  in  the 
sound  discretion  of  the  trial  court. — State  v.  Chee  Gong, 
17    Or.   635,   21   P.   882. 

Washington.  Whether  or  not  a  question  is  leading,  is 
within  the  sound  discretion  of  the  court. — Seattle  Auto- 
mobile Co.  v.  Stimson,  66  Wash.  548,  120  P.  73. 
Texas.  Where  defendant,  on  trial  for  murder,  placed  wit- 
nesses on  the  stand  to  prove  his  reputation  during  the 
thirty  years  they  had  known  him  and  their  testimony  was 
to  the  effect  that  he  was  a  peaceable,  law-abiding  citizen, 


EXAMINATION  OF  WITNESSES.  869 

it  was  not  proper  cross-examination  to  ask  these  witnesses 
if  they  had  heard  that  defendant  had  killed  a  man  in  Geor- 
gia before  he  came  to  the  state  of  Texas,  since  such  tes- 
timony related  to  circumstances  too  remote  to  affect  his 
reputation.— Taylor  v.  State,  (Tex.  Cr.  R.),  179  S.  W.  113. 
Wyoming.  Much  latitude  must  be  allowed  the  trial  judge 
in  permitting  the  cross-examination  of  witnesses  by  ques- 
tions objected  to  as  leading  in  form,  and  the  allowance 
of  such  questions  is  not  generally  to  be  considered  as 
ground  for  reversal  unless  there  appears  to  have  been  a 
clear  abuse  of  discretion. — Harris  v.  State,  23  Wyo.  487, 
153  P.  881. 

NOTE    XLV. 
(To    Articles    126,    127,    128.) 

These  articles  relate  to  matters  almost  too  familiar  to 
require  authority,  as  no  one  can  watch  the  proceedings  of 
any  Court  of  Justice  without  .seeing  the  rules  laid  down  in 
them  continually  enforced.  The  subject  is  discussed  at 
length  in  2  Ph.  Ev.  pt.  2,  chap,  x.,  p.  456,  &c;  [1  Greenl.  Ev„ 
l  et  seq.];  T.  E.  s.  125S,  &c.;  see,  too,  Best,  s.  6:u.  &cj. 
In  respect  to  leading  questions,  it  is  said,  "It  is  entirely  a 
question  for  the  presiding  judge  whether  or  not  the  exam- 
ination   Is   being   conducted    fairly."      R.    N.    P.    182. 

Article  129.* 
3TION8  i..\\yi-ti.  in  Cross-examination. 

When  a  witness  is  cross-examined,  he  may,  in 
addition  to  the  questions  hereinbefore  referred  to, 
be  asked  any  questions  which  tend — 

(1)  To  test  his  accuracy,  veracity,  or  credi- 
bility; or 

(2)  To  shake  his  credit,  by  injuring  his  char- 
acter. 

Witnesses  have  been  compelled  to  answer  such 
questions,  tht  ugh  the  matter  suggested  was  irre- 

•See  Note  al   end  ol    arl 


870  EXAMINATION  OF  WITNESSES. 

levant  to  the  matter  in  issue,  and  though  the  an- 
swer was  disgraceful  to  !he  witness;  but  it  is 
submitted  that  the  Court  has  the  right  to  exercise 
a  discretion  in  such  cases,  and  to  refuse  to  com- 
pel such  questions  to  be  answered  when  the  truth 
of  the  matter  suggested  would  not  in  the  opinion 
of  the  Court  affect  the  credibility  of  the  witness 
as  to  the  matter  to  which  he  is  required  to  testify. 
In  the  case  provided  for  in  article  120,  a  witness 
cannot  be  compelled  to  answer  such  a  question. 

Illustrations. 

(a)  The  question  was  whether  A  committed  perjury  in 
swearing  that  he  was  R.  T.  B  deposes  that  he  made  tattoo 
marks  on  the  arm  of  R.  T.,  which  at  the  time  of  the  trial  were 
not,  and  never  had  been,  on  the  arm  of  A.  B  may  be  asked 
and  oompelled  to  answer  the  question  whether,  many  years 
after  the  alleged  tattooing,  and  many  years  before  the  occa- 
sion on  which  he  was  examined,  he  committed  adultery  with 
the  wife  of  one  of  his  friends.1 

(b)  [On  the  prosecution  of  a  female  for  assault  with  in- 
tent to  murder,  she  took  the  stand,  and  on  cross-examina- 
tion was  asked  whether  she  had  not  rented  houses  for  pur- 
poses of  prostitution  at  various  places  in  Montana;  whether 
she  had  not  been  "a  kind  of  backer  for  the  prostitution  of 
female  persons  in  Missoula  and  Hamilton";  whether  she  had 
not  had  a  fight  with  a  priest;  whether  she  had  not  hugged 
arid  kissed  a  juryman  after  she  had  been  found  not  guilty 
of  some  misdemeanor  upon  one  occasion;  whether  she  had 
not  had  a  fight  with  a  French  prostitute  at  some  time;  and 
whether,  at  another  time,  she  had  not  "run  a  young  gentle- 
man through  a  saloon";  and,  finally,  if  her  picture  did  not 
hang  in  the  Rogue's   Gallery   in   the  city  of  New  York. 

Held,  that  this  was  not  proper  cross-examination  of  what 
appeared  by  the  record  to  have  been  the  defendant's  evi- 
dence in  chief,  and  that  it  did  not  legitimately  tend  to  im- 
pair the  credibility  of  the  defendant  as  a  witness.]2 

*R.  v.  Orton.  See  summing  up  of  Cockburn,  C.  J.,  vol.  ii., 
p.  719,  &c. 

2[State  v.   Gleim,    17   Mont.    17,    41   P.    998.] 


EXAMINATION  OF  WITNESSES.  871 

QUESTIONS  ON  CROSS-EXAMINATION. 
Impeachment  of  Witness. 

See  Article  133. 

In  this  state,  the  rule  of  veracity  character  as  ex- 
pressed in  the  practice  of  impeachment  by  general  bad 
reputation  for  truthfulness  of  the  witness  in  the  com- 
munity in  which  he  lives,  has  been  recognized  and  adopted, 
and  convictions  for  crime  of  such  kinds  as  may  be  rele- 
vant to  veracity  character,  may  be  shown  either  by  rec- 
ord of  conviction  or  upon  cross-examination,  and  the  rule 
is  the  same  in  both  civil  and  criminal  cases.  But.  the  rule 
does  not  go  beyond  these  limits,  and  it  is  held  that  ar- 
rests on  indictments  or  charges  for  crime  are  not  com- 
petent even  on  cross-examination  and  their  admission  con- 
stitutes reversible  error. — State  v.  Kent,  5  N.  D.  516,  67 
N.  W.  1052,  35  L.  R.  A.  518;  Richardson  v.  Gage,  28  S.  D. 
390,  133  N.  W.  692. 

Arkansas.  A  witness  cannot  be  impeached  by  showing 
that  his  reputation  for  unchastity  or  other  particular  im- 
moral habits,  renders  him  unworthy  of  belief.  The  im- 
peaching testimony  cannot  go  beyond  his  general  repu- 
tation for  morality.— Cline  v.  State,  51  Ark.  140,  10  S. 
W.    225. 

It  was  error  to  permit,  in  a  prosecution  for  arson,  the 
state  to  ask  defendant  if  his  brother  had  not  been  charged 
with  killing  and  burning  a  woman,  the  brother  not  being 
charged  with  the  commission  of  the  crime  under  investi- 
gation nor  a  witness  on  the  trial. — Counts  v.  State,  120 
Ark.  462,  179   S.  W.  662. 

California.  If  a  witness,  on  cross-examination,  is  asked 
if  he  was  not  arrested  for  vagrancy,  an  objection  that  the 
record  is  the  best  evidence  is  not  tenable;  for  the  arrest 
does  not  necessarily  imply  that  there  was  any  record. — 
People  v.  Manning.  48  Cal.  335. 

A  conviction  of  misdemeanor  cannot  be  proved  by  cross- 
examination  of  a  defendant  who  has  taken  the  stand  in 
his  own  behalf,  but  the  record  of  conviction  is  indispens- 
able.—People  v.  Schenick.  65  Cal.  625,  4  P.  675. 


S72  EXAMINATION  OF  WITNESSES. 

On  cross-examination  of  a  witness  for  defendant,  she 
may  be  impeached  as  being  unworthy  of  belief,  by  being 
questioned  as  to  wfce  her  she  had  not  told  a  third  person 
that  it  he  woalcl  no.  prosecute  a  certain  person  for  shoot- 
ing she  would  not  testify  for  defendant  in  this  case, 
though  »uch  prosecution  had  nothing  to  do  with  the  pend- 
ing  matter.— Barkly  v.   Copeland,   86   Cal.   483,   25   P.   1. 

A  defendant  charged  with  attempted  burglary,  after  tes- 
tifying as  to  something  that  occurred  on  the  night  of  the 
alleged  burglary,  may  be  required  to  answer  on  cross- 
examination  if  he  had  not  previously  been  convicted  of  a 
felony.— People  v.  Crowley,  100  Cal.  478,  35  P.  84. 

A  defendant  who  takes  the  stand,  and  testifies  as  a 
witness  in  his  own  behalf  may  be  cross-examined  upon 
matters  affecting  his  character  and  credibility,  the  same 
as  other  witnesses;  and  the  facts  developed  on  the  cross- 
examination,  even  though  they  incidentally  tend  to  show 
that  the  defendant  is  guilty  of  other  offenses  than  that 
for  which  he  is  on  trial,  become  proper  evidence  in  the 
case,  to  be  considered  by  the  jury  so  far  as  they  tend  to 
prove  any  issue  in  the  case.  (Homicide;  defendant  cross- 
examined  with  reference  to  his  occupation,  his  past  life, 
and  particular  quarrels  and  difficulties  he  had  had,  and 
with  reference  to  his  having  carried  and  used  dangerous 
weapons  at  other  times.) — State  v.  Wells,  54  Kan.  161, 
37    P.    1005. 

Kansas.  A  defendant  who  voluntarily  becomes  a  witness 
in  his  own  behalf  is  subject  to  the  same  rule  as  any  other 
witness,  and  may  be  asked  by  the  state,  on  cross-exam- 
ination, if  he  had  not  been  convicted  of  larceny  at  the 
previous  term  of  the  same  court  in  which  he  was  being 
tried.— State  v.  Probasco,  46  Kan.  310,  26  P.  749. 

Oklahoma.  A  defendant  who  has  availed  himself  of  the 
privilege  of  becoming  a  witness,  thereby  changes  his 
status  from  defendant  to  witness  and  he  may  be  cross- 
examined  within  the  usual  boundaries  and  thus  be  dis- 
credited and  impeached. — Richards  v.  State,  (Okl.  Cr.), 
154  P.  72;  Kirk  v.  State,  11  Okl.  Cr.  382,  146  P.  914;  Bux- 
ton v.  State,  11  Okl.  Cr.  85,  143  P.  58. 


EXAMINATION  OF  WITNESSES.  873 

Oregon.  On  cross-examination  defendant  may  be  asked 
to  impeach  his  credit,  if  he  had  not  been  convicted  for 
felony.— State  v.  Bacon,  13  Or.  143,  9  P.  393. 
Texas.  A  witness  may  be  compelled  to  answer  a  question 
degrading  him,  collateral  to  the  main  issue,  but  relevant 
to  his  credit.  (Whether  he  was  then  not  under  indictment 
for  theft.)— Carroll  v.  State,  32  Tex.  Cr.  R.  431,  24  S.  W. 
100. 

Where  defendant  takes  the  stand  in  his  own  behalf,  he 
may  be  asked  whether  he  has  been  indicted,  in  order  to 
impeach  his  credibility. — Sexton  v.  State,  33  Tex.  Cr.  R. 
416,  26  S.  W.  833. 

A  car  inspector  testifying  that  he  invaribly  inspected  a 
car  before  it  left  may  be  cross-examined  as  to  particular 
failures  to  do  so. — Cunningham  v.  Austin  &  N.  W.  R.  Co., 

88  Tex.  534,  31  S.  W.  629. 

On  cross-examination,  for  the  purpose  of  impeaching  a 
witness,  it  is  permissible  to  ask  her  if  she  had  hereto- 
fore been  charged  with  swindling. — Arnold  v.  State,  (Tex. 
Cr.  R.),  179  S.  W.  1183. 

A  witness  in  a  civil  action  cannot  be  impeached  by  re- 
quiring him  to  testify  to  discreditable  acts  on  his  part 
having  no  material  bearing  on  the  issues  involved. — Tur- 
ner v.  McKinney,   (Tex.  Civ.  App.),  182  S.  W.  431. 

Washington.  For  the  purpose  of  impeaching  a  witness 
it  was  not  error  to  ask  her  if  she  was  a  prostitute,  though 
witness  could  have  refused  to  answer  the  question  upon 
the  ground  that  it  would  tend  to  incriminate  her. — State 
v.  Coella.  3  Wash.  99,   28  P.   28. 

An  Impeaching  question  must  correspond  with  the  im- 
peaching evidence,  and  must  not  relate  to  a  collateral 
matter  first  opened  and  denied  on  cross-examination. — 
State  v.  Stone.  66  Wash.  625,  120  P.  76;  State  v.  Carpen- 
ter,  32   Wash.    254,   7::    !'.   357. 

Where  a  defendanl  voluntarily  takes  the  stand  in  his 
own  behalf,  he  is  subjeCl  to  all  the  rules  of  law  relating 
lo  cross  -examination  of  other  witnesses. — State  v.  Brooks. 

89  Wash.  427.  154  P.  795;  State  v.  Morden,  ST  Wash.  4G5. 
151  P.  882. 


874  EXAMINATION  OP  WITNESSES. 

Accuracy. 
New  Mexico.  Questions  propounded  to  a  witness  on  cross- 
examination  as  to  what  he  has  testified  to  at  a  prelim^ 
inary  hearing  in  the  cause,  was  not  proper  cross-exam- 
ination, and  cannot  be  justified  upon  the  theory  of  test- 
ing the  accuracy  and  credibility  of  the  witness. — State  v. 
Carter,   21   N.   M.    166,    153   P.    271. 

Texas.  Where  defendant,  accused  of  manslaughter,  put 
witnesses  upon  the  stand  to  prove  his  good  moral  char- 
acter, it  was  proper,  upon  cross-examination,  to  ask  such 
witnesses,  if,  in  forming  their  opinion,  they  had  heard 
that  defendant  was  the  father  of  an  illegitimate  child. — 
Duhig  v.  State,   (Tex.  Cr.  R.),  180  S.  W.  252. 

Credibility. 
Arkansas.  Upon  a  prosecution  for  rape,  defendant  having 
taken  the  stand  in  his  own  behalf,  was  subject  to  all  the 
rules  of  cross-examination  and  impeachment  as  any  other 
witness,  and  therefore  the  state,  to  test  his  credibility, 
had  the  right  in  cross-examination  to  ask  him  if  he  had 
ever  been  convicted  for  a  crime. — Younger  v.  State,  100 
Ark.  321,  140  S.  W.  139;  Werner  v.  State,  44  Ark.  122; 
Turner  v.  State.  100  Ark.  199,  139  S.  W.  1124. 
California.  The  fact  that  a  witness  answered  "I  don't 
remember,"  in  answer  to  a  question  whether  he  had  made 
an  alleged  inconsistent  statement  in  a  police  court,  did 
not  render  it  improper  to  show  by  way  of  impeachment 
that  he  did  in  fact  make  such  statement  at  the  time  men- 
tioned.—Ehat  v.  Scheidt.  17  Cal.  App.  430,  120  P.  49. 
Idaho.  The  jury  are  the  judges  of  the  credibility  of  wit- 
nesses.— People  v.  Barnes,  2  Ida.  148,  9  P.  532. 
Nevada.  It  was  proper  to  admit  testimony  of  a  conviction 
of  a  witness  for  the  purpose  of  determining  his  credibil- 
ity.— Parker  v.  Hamilton,  (Nev.),  154  P.  65. 
Oregon.  Where  a  party  calls  a  witness  for  the  purpose 
of  impeaching  a  witness  of  the  opposing  side  by  showing 
that  his  general  reputation  for  truth  is  bad,  and  the  other 
party  on  cross-examination  calls  out  particular  acts  tend- 
ing to  show  that  such  witness  is  not  worthy  of  belief, 
such  facts  can  be  considered  by  the  jury  as  affecting  the 


EXAMINATION  OF  WITNESSES.  875 

credibility  of  the   witness  attempted   to   be  impeached. — 
Steeples  v.  Newton,  7  Or.  110,  33  Am.  St.  R.  705. 
Washington.     The  credibility  of  a  witness  is  for  the  jury. 
—State   v.    Schuman,    89    Wash.    9,    153    P.    1084;    State    v. 
Brooks,   89   Wash.   427,   154   P.   795. 

Bias   and    Prejudice. 

The  fact  that  a  witness  admits  the  existence  of  ill- 
feeling  or  prejudice  against  a  party,  does  not  preclude  an 
inquiry  into  the  extent  or  intensity  of  such  ill-feeling,  nor 
the  cross-examination  of  the  witness  as  to  the  character 
and  degree  of  such  prejudices. — Stewart  v.  Kindel,  15 
Colo.  539,  25  P.  990;  State  v.  Collins,  33  Kan.  77,  5  P.  368. 
California.  The  state  of  mind  of  a  witness  as  to  bias  or 
prejudice,  his  interests  involved,  his  hostility  or  friendship 
towards  the  parties,  are  always  proper  matters  of  in- 
stigation, in  order  that  the  truth  may  prevail  and  false- 
ud  find  its  proper  level. — People  v.  Thomson,  92  Cal. 
506,  28   P.  589. 

It  was  proper,  upon  a  prosecution  for  rape,  for  the 
people  to  show  that  a  witness,  who  had  attempted  to  dis- 
credit the  complaining  witness,  had  told  certain  persons 
that  he  knew  the  defendant  was  guilty,  but  he  was  not 
"fool  enough  to  swear  to  it  in  court,"  such  statements 
going  to  the  witness'  bias. — People  v.  Converse,  28  Cal. 
App.  687,   153  P.  734. 

Idaho.  It  is  proper  upon  cross-examination  to  show  the 
bias  and  interest  of  the  witness  as  a  matter  affecting  his 
credibility. — Idaho-Western  Ry.  Co.  v.  Columbia  Confer- 
ence, etc.,  20  Ida.   568,   119   P.   60. 

Kansas.  Questions  on  cross-examination  put  for  the  pur- 
pose of  showing  the  prejudice  of  a  witness  against  a 
party  are  permissible. — Clark  v.  Phelps,  35  Kan.  43,  10 
P.    107. 

South  Dakota.  Personal  ill-will  on  the  part  of  the  wit- 
ness toward  a  party  to  an  action,  is  evidence  of  bias  which 
may  affect  credibility,  and  the  right  to  elicit  the  fact  on 
cross-examination  cannot  be  denied.— Richardson  v.  Gage, 
28  S.  D.  390,  133  N.  W.  692. 


876  EXAMINATION  OF  WITNESSES. 

Character  of  Witness. 
Arkansas.     Upon  a  prosecution  for  rape,  where  defendant 
did  not  offer  in  evidence  his  good  character,  the  state  had 
no  right  by  way  of  contradiction  to  show  his  bad  character. 
—Younger  v.  State,  100  Ark.  321,  140  S.  W.  139. 

NOTE    XLVI. 
(To   Article   129.) 

This  article  states  a  practice  which  is  now  common,  and 
which  never  was  more  strikingly  illustrated  than  in  the  case 
referred  to  in  the  illustration.  But  the  practice  which  it 
represents  is  modern;  and  I  submit  that  it  requires  the  qual- 
ification suggested  in  the  text.  I  shall  not  believe,  unless 
and  until  it  is  so  decided  upon  solemn  argument,  that  by  the 
law  of  England  a  person  who  is  called  to  prove  a  minor 
fact,  not  really  disputed,  in  a  case  of  little  importance, 
thereby  exposes  himself  to  having  every  transaction  of  his 
past  life,  however  private,  inquired  into  by  persons  who  may 
wish  to  serve  the  basest  purposes  of  fraud  or  revenge  by 
doing  so.  Suppose,  for  instance,  a  medical  man  was  called 
to  prove  the  fact  that  a  slight  wound  had  been  inflicted,  and 
been  attended  to  by  him,  would  it  be  lawful,  under  pretense 
of  testing  his  credit,  to  compel  him  to  answer  upon  oath  a 
series  of  questions  as  to  his  private  affairs,  extending  over 
many  years,  and  tending  to  expose  transactions  of  the  most 
delicate  and  secret  kind,  in  which  the  fortune  and  character 
of  other  persons  might  be  involved?  If  this  is  the  law, 
it  should  be  altered.  The  following  section  of  the  Indian 
Evidence  Act  (1  of  1872)  may  perhaps  be  deserving  of  con- 
sideration. After  authorizing,  in  sec.  147,  questions  as  to 
the  credit  of  the  witness,  the  Act  proceeds  as  follows  in  sec. 
148:— 

"If  any  such  question  relates  to  a  matter  not  relevant  to 
the  suit  or  proceeding,  except  in  so  far  as  it  affects  the 
credit  of  the  witness  by  injuring  his  character,  the  Court 
shall  decide  whether  or  not  the  witness  shall  be  compelled 
to  answer  it,  and  may,  if  it  thinks  fit,  warn  the  witness 
that  he  is  not  obliged  to  answer  it.  In  exercising  this  dis- 
cretion, the  Court  shall  have  regard  to  the  following  con- 
siderations:— 

"(1)  Such  questions  are  proper  if  they  are  of  such  a  nature 
that  the  truth  of  the  imputation  conveyed  by  them  would 
seriously  affect  the  opinion  of  the  Court  as  to  the  credibility 
of   the    witness   on    the   matter   to    which   he   testifies. 

"(2)  Such  questions  are  improper  if  the  imputation  which 
they  convey  relates  to  matters  so  remote  in  time  or  of  such 
a  character  that  the  truth  of  the  imputation  would   not  af- 


EXAMINATION  OF  WITNESSES.  877 

feet,  or  would  affect  in  a  slight  degree,  the  opinion  of  the 
Court  as  to  the  credibility  of  the  witness  on  the  matter  to 
which    he    testifies. 

"(3)  Such  questions  are  improper  if  there  is  a  great  dis- 
proportion between  the  importance  of  the  imputation  made 
against  the  witness's  character  and  the  importance  of  his 
evidence." 

Article  129a. 
judge's  discretion  as  to  cross-examination  to  credit. 

The  judge  may  in  all  cases  disallow  any  ques- 
tions put  in  cross-examination  of  any  party  or 
other  witness  which  may  appear  to  him  (i.  e.,  the 
judge)  to  be  vexatious  and  not  relevant  to  any 
matter  proper  to  be  inquired  into  in  the  cause  or 
matter,  (a) 

DISCRETION    OF    COURT. 

California.  It  is  the  duty  of  the  court  to  expedite  busi- 
ness by  curtailing  cross-examination  upon  immaterial  and 
irrelevant  matters.  (Witness  for  prosecution  in  murder 
case  after  being  cross-examined  as  to  how  she  fixed  the 
date  upon  which  she  saw  accused,  and  replying  that  it 
was  because  of  a  postal  card  which  her  husband  received 
that  day  and  which  had  been  directed  to  a  certain  house 
of  theirs  occupied  by  tenants,  was  improperly  asked  ques- 
tions as  to  the  occupation  and  ownership  of  the  house.) 
—People  v.  Durrant.  116  Cal.  179,  48  P.  75. 
Kansas.  The  extent  to  which  a  witness  may  be  cross- 
examined  on  matters  irrelevant  and  collateral  to  the  main 
issue,  with  a  view  of  impairing  his  credibility,  depends 
upon  the  appearance  and  conduct  of  the  witness,  and  all 
the   circumstances   of  the  case,   and   necessarily   rests   in 

(a)  Rules  of  Supreme  Court,  Order  xxxvi..  Rule  38.  I 
leave  Article  129  as  it  originally  stood,  because  this  Order 
is,  after  all,  only  an  exception  to  the  rule.  "Him"  must  refer 
to  the  judge,  as  it  would  otherwise  refer  to  the  "party  or 
witness,"    which    would    be   absurd. 


878  EXAMINATION  OF  WITNESSES. 

the  sound  discretion  of  the  trial  court;  and  only  where 
there  has  been  a  clear  abuse  of  discretion  will  error  lie. 
(Prosecution  for  selling  liquor.  A  co-defendant  testified 
for  both  and  on  cross-examination  was  asked  if  he  was 
not  an  old  saloon-keeper,  and  if  he  had  not  been  tried  and 
convicted  in  that  court  several  times  for  the  sale  of 
liquor.)— State  v.  Pfefferle,  36  Kan.  90,  12  P.  406. 
Oregon.  The  trial  court  in  the  exercise  of  its  discretion 
may  exclude  or  allow  questions  to  defendant's  witness  on 
cross-examination  whether  he  and  defendant  had  not  at 
one  time  been  arrested  on  a  charge  of  robbery,  in  order 
to  show  the  state  of  feeling  and  relations  of  defendant  and 
his  witness.— State  v.  Bacon,  13  Or.  143,  9  P.  393. 
Washington.  It  was  not  an  abuse  of  discretion  on  the 
part  of  the  court  to  refuse  to  recall  a  witness  for  further 
cross-examination  in  order  to  lay  a  foundation  for  her 
impeachment,  where  the  questions  proposed  to  be  asked 
were  in  no  sense  connected  with  the  main  charge. — State 
v.  Schuman,  89  Wash.  9,  153  P.  1084. 

Wyoming.  The  latitude  of  the  cross-examination  is 
largely  within  the  discretion  of  the  trial  court  and  a  ver- 
dict will  not  be  disturbed  on  the  ground  that  such  discre- 
tion was  abused,  unless  it  is  shown  that  the  discretion  has 
been  flagrantly  abused. — Boyer  v.  Bugher,  19  Wyo.  463, 
120   P.    171. 

Article  "130. 

exclusion  of  evidence  to  contradict  answers  to  questions 

testing  veracity. 

When  a  witness  under  cross-examination  has 
been  asked  and  has  answered  any  question  which 
is  relevant  to  the  inquiry  only  in  so  far  as  it  tends 
to  shake  his  credit  by  injuring  his  character,  no 
evidence  can  be  given  to  contradict  him  except  in 
the  following  cases :  (a) 

(a)  A.  G.  v.  Hitchcock,  1  Ex.  91,  99-105.  See,  too,  Palmer 
v.   Trower,    8   Ex.    247. 


EXAMINATION  OF  WITNESSES.  879 

(1)  If  a  witness  is  asked  whether  he  has  been 
.1  i  sly  ein\  .  any  felonry  or  misdemean- 
or, and  denies  6i  d  es  n  t  admit  it,  or  refuses  to 
answer,  evidence  may  be  given  of  his  previous 
conviction  thereof,  (b) 

(2)  If  a  witness  is  asked  any  question  tending 
t)  show  that  he  is  not  impartial,  and  answers  it 
by  denying  the  facts  suggested,  he  may  be  con- 
tradicted, (c) 

Illustration. 

i;i)  [A  defendant  accused  of  murder  had  examined  a  cer- 
tain witness  in  chief,  and  on  cross-examination  he  was  asked 
whether  he  did  not  make  certain  statements  tending  to  show 
that  he  was  friendly  to  the  defendant  and  one  Hubbard,  a 
id  of  defendant,  and  that  he  would  not  tell  anything 
that  would  hurt  defendant.  The  witness  denied  having  made 
the  statements,  and  the  person  to  whom  he  was  alleged  to 
have  made  them  was  called,  and  allowed,  over  the  objection 
of  defendant,  to  contradict  the  former  witness,  and  to  tes- 
tify   to    the   statements    made    by   him. 

The  court  held  that  it  was  competent  to  show  that  if  the 
first  witness  had  testified  favorably  to  defendant  in  his 
examination  in  chief  it  was  competent  to  show  that  he  had 
mad.-  statements  out  of  court  tending  to  show  his  friendly 
reeling  towards  the  defendant,  and  that  he  had  expressed  an 
Intention  of  suppressing  facts  within  his  knowledge  that 
would    Injure   the   defendant's   case.]1 

California.  Where  a  witness  for  defendant  has  attempted 
to  dissuade  one  of  plaintiff's  witnesses  from  attending  the 
trial  and  denies  upon  cross-examination  that  he  has  done 
so,  plaintiff  is  entitled  to  give  evidence  to  contradict  him, 
such  evidence  being  addressed  to  his  conduct  at  the  pres- 
ent trial  and  affecting  his  credit  in  that  particular;  being 
a n  exception  to  the  general  rule  to  the  effect  that  where 
a    witness    on    cross-examination    denies    collateral    or   ir- 


(b)  28  &    29    Vict.   c.    is,  s.   6. 

(c)  A.   <;.    \.    Hitchcock,    l    Bx.   91,   pp.    100,   105. 
•[People  V.  Murray,  85  Cal.   350,  24  P.  666.] 


880  EXAMINATION  OF  WITNESSES. 

relevant  matters,  witnesses  cannot  be  called  to  contra- 
dict him.— Lewis  v.  Steiger,  68  Cal.  200,  8  P.  884. 
Washington.  No  rule  is  better  settled  than  the  one  that 
the  cross-examining  party  is  concluded  by  the  answer 
which  a  witness  makes  to  a  question  appertaining  to  col- 
lateral matter;  to  such  answers  no  contradiction  is  al- 
lowed even  for  the  purpose  of  impeaching  the  witness. — 
State  v.  Schuman,  89  Wash.  9,  153  P.  1084;  State  v.  Car- 
penter,  32  Wash.  254,  73  P.  357. 

Article  131.* 
statements  inconsistent  with  present  testimony  may  be 

PROVED. 

Every  witness  under  cross-examination  in  any 
proceeding,  civil  or  criminal,  may  be  asked  wheth- 
er he  has  made  any  former  statement  relative  to 
the  subject-matter  of  the  action  and  inconsistent 
with  his  present  testimony,  the  circumstances  of 
the  supposed  statement  being  referred  to  suffi- 
ciently to  designate  the  particular  occasion,  and 
if  he  does  not  distinctly  admit  that  he  has  made 
such  a  statement,  proof  may  be  given  that  he  did 
in  fact  make  it. 

The  same  course  may  be  taken  with  a  witness 
upon  his  examination  in  chief,  if  the  judge  is  of 
opinion  that  he  is  "adverse"  (i.  e.  hostile)  to  the 
party  by  whom  he  was  called  and  permits  the 
question. 

It  seems  that  the  discretion  of  the  judge  can- 
not be  reviewed  afterwards,  (a) 

(a)    Hice    v.    Howard,    16    Q.    B.    D.    681. 
•See   Note  at  end  of  article.  ' 


EXAMINATION  OF  WITNESSES.  881 

PROOF    OF    INCONSISTENT    STATEMENTS. 

California.  To  impeach  a  witness  upon  the  ground  of  in- 
consistent statements,  the  impeaching  testimony  must  be 
plainly  inconsistent  with  that  already  given. — People  v. 
Burns,  16  Cal.  App.  416,  118  P.  454;  Estate  of  O'Connor,  118 
Cal.  69,  50  P.  4;  People  v.  Collum,  122  Cal.  186,  54  P.  589. 
Kansas.  Where  a  defendant  upon  trial  for  murder  of  his 
sister,  produced  a  witness  who,  with  a  view  of  showing 
the  conscious  innocence  of  the  defendant,  testified  what 
his  conduct  and  appearance  were  soon  after  the  death 
of  his  sister,  it  was  proper  to  inquire  on  cross-examina- 
tion, if  the  witness  had  not  stated  at  the  preliminary  ex- 
amination that  defendant  impressed  him  at  once  as  being 
guilty  of  the  murder.— State  v.  Baldwin,  36  Kan.  1,  12  P. 
318. 

Montana.  Where  it  is  permitted  a  party  to  contradict 
his  own  witness  by  other  evidence,  and  to  ask  the  witness 
whether  he  had  made  other  statements,  the  state,  in  a 
criminal  prosecution,  may  cross-examine  its  witnesses, 
where  their  testimony  varies  from  what  the  county  attor- 
ney had  reason  to  believe  it  would  be. — State  v.  Bloor, 
20  Mont.  574,  52  P.  611. 

Nebraska.  A  party  cannot,  by  drawing  out  on  cross-ex- 
amination statements  made  by  a  witness  which  were  ir- 
relevant and  collateral,  gain  the  right  to  contradict  such 
testimony  by  showing  inconsistent  statements  of  the  wit- 
ness at  other  times. — Owens  v.  Omaha  &  C.  B.  St.  Ry. 
Co.  99  Neb.   364,  156  N.  W.  661. 

New  Mexico.  A  witness  may  be  impeached  not  only  by 
his  contradictory  or  inconsistent  statements,  but  also  by 
proof  that  in  a  former  action,  under  circumstances  which 
if  was  his  duty  to  state  the  whole  truth,  he  omitted  to 
state  material  and  relevant  facts  which  he  now  states. — 
State  v.  Perkins,  21  N.  M.  135.  153  P. 

There  are  three  sorts  of  evidence  that  may  ho  Intro- 
duced to  impeach  a  witness:  (it  Evidence  relating  to 
bia  character  and  directly  tending  to  show  that  the  wit- 
ness lacks  truthfulness;  (2)  evidence  showing  that  on 
former   occasions,    when    purporting    to    fully   narrate    the 


882  EXAMINATION  OF  WITNESSES. 

facts,  he  neglected  to  state  material  facts  testified  to  on 
the  present  occasion;  (3)  evidence  showing  that  his  tes- 
timony on  the  present  hearing  materially  varies  from  the 
acts  done  or  statements  made  by  him  on  other  occasions. 
—State  v.  Perkins,  21  N.  M.  135,  153  P.  258. 
Texas.  A  statement  of  facts  made  up  by  counsel  in  a 
former  appeal  cannot  be  used  in  evidence  for  the  purpose 
of  contradicting  a  witness  in  a  subsequent  trial. — Sinclair 
v.  Stanley,  G9  Tex.  718,  7   S.  W.  511. 

Where  a  witness,  upon  being  asked  about  a  matter  tes- 
tified to  in  another  proceeding  states  that  she  cannot  re- 
member, it  can  be  shown,  by  way  of  contradiction  or  im- 
peachment, that  she  did  so  testify. — Taylor  v.  State,  (Tex. 
Cr.  R.),  180  S.  W.   242. 

For  the  purpose  of  impeaching  witnesses,  their  contra- 
dictory statements  may  be  proved  whether  sworn  to  or 
not,  and  whether  reduced  to  writing  or  not. — Taylor  v. 
State,  (Tex.  Cr.  R.),  180  S.  W.  242. 

Washington.  The  stenographic  notes  of  the  official 
stenographer  who  took  the  testimony  of  a  witness  in  a 
former  trial,  after  showing  that  he  had  taken  them  at 
the  time  of  the  trial  and  that  they  were  correct,  and  that 
aside  from  them  he  had  no  recollection  what  the  witness 
had  testified  to,  were  admissible  in  evidence  to  impeach 
the  witness  on  the  present  trial  by  showing  his  contra- 
dictory statements. — Klepsch  v.  Donald,  8  Wash.  162,  35 
P.  621. 

Impeachment  of  Own  Witness. 

California.  A  party  calling  a  witness  cannot  impeach  him 
for  making  contradictory  statements.  If  the  witness 
merely  fails  to  testify  as  expected,  such  failure  does  not 
authorize  the  party  calling  him  to  prove  that  he  had  else- 
where made  the  desired  statements.  It  is  only  where  he 
has  given  damaging  testimony  that  he  is  open  to  impeach- 
ment.—People  v.  Mitchell,  94  Cal.  550,  29  P.  1106. 

And  the  admission  of  such  testimony  "would  enable  the 
party  to  get  the  naked  declarations  of  the  witness  before 
the  jury  as  independent  evidence." — Kennedy's  Estate,  In 
re,  104  Cal.  429,  38  P.  93. 


EXAMINATION  OF  WITNESSES.  883 

Colorado.  The  party  calling  a  witness  cannot  afterward 
assail  his  general  character  for  truth  or  the  testimony 
drawn  from  the  witness  by  him.  But,  the  rule  does  not 
extend  to  testimony  drawn  from  the  same  witness  by  the 
opposite  party,  and  where  the  state  first  called  the  wit- 
ness and  afterwards  the  same  witness  was  called  on  an- 
other point  by  defendant,  the  state  was  permitted  to  ask 
witness  in  relation  to  the  matters  drawn  out  from  him 
by  defendant  if  he  had  not  given  a  different  account  of 
the  matter  at  another  time  and  place.— Jones  v.  People, 
2  Colo.  351. 

Kansas.  It  is  within  the  discretion  of  the  trial  court  to 
say  whether  or  not  a  party  may  impeach  his  own  wit- 
ness.—St.  Louis  &  S.  F.  Ry.  Co.  v.  Weaver,  35  Kan.  412, 
11  P.  408. 

While  ordinarily  a  party  may  not  impeach  his  own  wit- 
nesses, nor  offer  evidence  for  that  purpose,  he  is  not  con- 
clusively bound  by  the  statements  which  the  witness  may 
make;  and  where  a  party  has  been  entrapped  or  deceived 
by  an  artful  or  hostile  witness,  he  may  examine  such  wit- 
ness as  to  whether  he  had  not  previously  made  contrary 
statements,  and  may,  in  the  discretion  of  the  court,  be 
permitted  to  show  what  such  contrary  statements  were. 
-  State  v.  Sorter,  52  Kan.  531,  34  P.  1036. 

In  a  criminal  action  the  party  may  not  impeach  his  own 
witness.— State  v.   Keefe,  54  Kan.  197,  38  P.  302. 

New  Mexico.  A  witness  may  be  asked  on  direct  examina- 
tion if  he  did  not  make  statements  inconsistent  with  those 
testified  to,  when  the  party  is  taken  by  surprise,  and  the 
question  is  asked  for  the  purpose  of  refreshing  the  wit- 
ness's recollection  and  inducing  him  to  correct  his  testi- 
mony.—Territory  v.  Livingston,   13  N.  M.  319,  84  P.  1021. 

North  Dakota.  Where  a  party  calling  a  witness  is  sur- 
prised by  his  testimony,  which  not  only  fails  to  prove, 
but  actually  disproves,  his  case,  he  has  a  right  to  ask 
the  witness  whether  he  has  not  made  a  statement  to  the 
plaintiff  conflicting  with  his  testimony,  and  which,  if  true, 
would  tend  to  prove  the  plaintiff's  case. — George  v.  Trip- 
lets 5  N.  D.  50,  63  N.  W.  891. 


884  EXAMINATION  OF  WITNESSES. 

Oklahoma.  A  party  is  not  permitted  to  question  the  truth- 
fulness of  his  own  witness.  But  witnesses  frequently  tes- 
tify to  facts  which  do  not  warrant  the  conclusions  which 
they  place  upon  such  facts,  and  under  such  circumstances 
it  is  the  duty  of  the  court,  as  a  matter  of  law,  to  say  what 
facts  are  established  by  the  testimony.- — Wass  v.  Tennent- 
Stribbling  Shoe  Co.,  3  Okl.  152,  41  P.  339. 

A  party  will  not  be  permitted  to  impeach  his  own  wit- 
ness by  showing  his  general  bad  character  for  truth. — 
Sturgis  v.  State,  2  Okl.  Cr.  362,  102  P.  57. 
Oregon.  Sec.  838,  Civil  Code,  which  permits  a  party  pro- 
ducing a  witness  to  contradict  him  by  other  evidence  and 
to  show  that  he  has  made  at  other  times  statements  in- 
consistent with  his  present  testimony,  does  not  allow  a 
party  to  inquire  about  matters  regarding  which  the  wit- 
ness has  not  given  any  testimony,  or  testimony  of  a  weak 
or  unsatisfactory  character,  and  then  prove  his  statements 
made  at  another  time  in  reference  to  such  matters.  The 
object  of  the  section  is  to  prevent  a  party  from  being 
prejudiced  by  evidence  of  his  own  witness.  He  may,  of 
course,  call  a  witness's  attention  to  any  statements  he  may 
have  made  at  other  times  for  the  purpose  of  refreshing 
his  memory,  but  he  has  no  right  to  ask  him  about  his 
having  made  statements  at  another  time  favorable  to  the 
party's  side  of  the  case  which  the  witness  had  not  testified 
to,  nor  to  prove  what  those  statements  were. — Langford 
v.  Jones,  18  Or.  307,  22  P.  1064. 

While,  under  some  circumstances  a  party  may  contra- 
dict the  testimony  of  his  own  witness,  he  cannot  do  so 
by  statements  contained  in  an  involuntary  confession 
made  by  him.— State  v.  Steeves,  29  Or.  85,  43  P.  947. 
Texas.  One  cannot  impeach  his  own  witness.  By  plac- 
ing his  witness  on  the  stand,  the  party  calling  him  vouches 
for  his  truthfulness.— Taylor  v.  State,  (Tex.  Cr.  R.),  179 
S.  W.  113. 

At  common  law,  one  cannot  impeach  his  own  witness, 
but  our  Code  has  so  far  modified  the  rule  that  a  party 
may  attack  the  testimony  of  his  own  witness  when  the 
facts  stated  by  him  are  injurious  to  the  party. — Taylor 
v.  State,   (Tex.  Cr.  R.),  179  S.  W.  113. 


EXAMINATION  OF  WITNESSES.  885 

One  cannot  call  a  witness  knowing  or  being  informed 
that  he  may  not  testify  as  to  certain  matters,  and  thereby 
lay  predicates  to  impeach  his  own  witness,  and  thus  secure 
the  admission  of  testimony  otherwise  inadmissible. — In- 
gram v.  State,  (Tex.  Cr.  R.),  182  S.  W.  290. 
Washington.  The  impeachment  of  one's  own  witness 
should  be  extended  only  under  the  direction  of  the  court. 
— Hackett  v.  Scott,  59  Wash.  390,  109  P.  1030. 
Laying   Foundation. 

Where  it  is  sought  to  impeach  the  evidence  of  a  witness 
by  showing  that  at  other  times,  before  and  after  his  depo- 
sition was  taken,  the  witness  had  made  statements  con- 
trary to  those  contained  in  the  deposition,  it  was  held 
that  it  was  immaterial  that  the  witness  had  made  such 
statements  after  his  deposition  had  been  taken  and  at 
the  time  when  it  was  too  late  to  allow  a  proper  founda- 
tion for  its  introduction  to  be  laid  while  other  statements 
were  not  known  to  counsel  until  after  witness  had  been 
examined;  that  in  all  cases  the  proper  foundation  must 
first  be  laid  in  order  that  the  witness  could  have  the  op- 
portunity of  explaining  or  denying  them. — Ryan  v.  People, 
21  Colo.  119.  40  P.  775;  Howe  Mach.  Co.  v.  Clark.  15  Kan. 
492. 

Arkansas.  Where,  on  the  trial  of  a  criminal  case,  the 
deposition  of  a  witness  who  had  since  died  was  read  as 
evidence  against  the  accused,  he  may  impeach  such  evi- 
dence by  proof  of  previous  contradictory  statements  made 
by  the  witness  provided  that  the  witness  was  interro- 
gated in  the  examining  court  concerning  such  contra- 
dictory statements,  with  the  proper  specifications  of  the 
time  and  place;  and  if  the  deposition  fails  to  show  that 
such  foundation  was  laid  for  impeaching  the  witness,  the 
committing  magistrate  may  amend  it  to  show  the  fact. 
—Griffith  v.   State.  37  Ark.  324. 

A  witness  may  always  be  discredited  by  proving  that 
he  has  made  contradictory  statements  on  a  former  occa- 
sion, provided  he  is  first  inquired  of  concerning  such  for- 
mer matters. — McCoy  v.  State,   46  Ark.   141. 

Before  other  evidence  can  be  offered,  of  contradictory 
statements  made  by  the  witness  at  another  time,  he  must 


886  EXAMINATION  OF  WITNESSES. 

be  questioned  concerning  the  same,  with  the  circumstances 
of  time  and  persons  present. — Jones  v.  State,  101  Ark.  439, 
142  S.  W.  838. 

California.  Where  a  witness  is  sought  to  be  impeached 
by  proof  of  contradictory  statements  alleged  to  have  been 
made  by  him,  the  precise  matter  of  these  contradictions 
and  the  time  and  place  of  the  contradictory  statements, 
must  be  brought  to  the  knowledge  of  the  witness  on  cross- 
examination. — Baker  v.  Joseph,  16  Cal.  173. 

A  witness  cannot  be  impeached  by  showing  that  he  had 
made  statements  on  a  preliminary  examination  inconsist- 
ent with  his  statements  on  the  trial,  unless  his  former 
testimony,  if  reduced  to  writing,  was  first  shown  to  him. 
And  in  the  absence  of  any  testimony  to  the  contrary,  it 
will  be  presumed  that  such  testimony  was  in  writing. — 
People  v.  Ching  Hing  Chang,  74  Cal.  389,  16  P.  201. 

It  is  a  proper  foundation  for  the  impeachment  of  a  wit- 
ness to  ask  him  if  he  did  not,  in  the  presence  of  certain 
persons,  in  a  trial  in  a  police  court,  while  giving  his  tes- 
timony, make  the  statements  referred  to  and  the  witness 
answering  that  he  remembered  the  questions  to  which 
counsel  referred,  that  he  remembered  that  the  persons 
named  were  present  and  that  he  then  gave  testimony. — 
Ehat  v.  Scheidt,  17  Cal.  App.  430,  120  P.  49;  People  v.  Yee 
Foo,  4  Cal.  App.  730,  89  P.  450. 

Colorado.  That  a  witness  has  no  recollection  of  a  state- 
ment imputed  to  him  as  having  been  made  out  of  court 
concerning  matters  in  issue,  does  not  prevent  such  state- 
ments from  being  proved. — Jones  v.  People,  2  Colo.  351. 

Where  a  witness  sought  to  be  impeached  is  both  wit- 
ness and  party,  any  statements  he  may  have  made  out  of 
court  contradictory  of  his  own  material  testimony  was 
both  competent  as  impeaching  as  well  as  substantive  evi- 
dence against  him,  and  it  was  not  necessary  that  he  should 
have  first  been  examined  as  to  such  statements,  since  on 
rebuttal,  called  in  regular  order  of  trial,  he  was  afforded 
full  opportunity  of  testifying  in  regard  to  them. — Rose  v. 
Otis,  18  Colo.  59,  31  P.  493. 

A  witness  cannot  be  impeached  by  proof  that  in  some 
other   action   he   has   made   statements   inconsistent   with 


EXAMINATION  OF  WITNESSES.  887 

his  testimony  at  the  trial  concerning  matters  not  relevant 
to  the  issue,  nor  at  all,  without  laying  a  proper  founda- 
tion by  first  calling  his  attention  to  the  alleged  contra- 
dictory statements. — Mullen  v.  McKim,  22  Colo.  468,  45  P. 
416. 

Nebraska.  As  a  proper  foundation  for  the  impeachment 
of  a  witness  for  making  contradictory  statements  prior  to 
his  present  testimony,  the  witness  may  be  asked  if  he  did 
not,  at  a  certain  time  and  place,  in  the  presence  of  cer- 
tain parties,  make  certain  statements,  as  to  facts  within 
his  knowledge,  at  variance  with  his  testimony  on  the  trial. 
— Pinschower  v.  Hanks,  18  Nev.  99,  1  P.  454. 
Oregon.  Evidence,  sought  for  the  purpose  of  laying  the 
ground  for  impeaching  a  witness  must  be  relevant  to  the 
issues.— Goodall  v.  State,  1  Or.  333,  80  Am.  Dec.  396. 

Proof  of  contradictory  statements  made  by  a  witness 
cannot  be  given,  unless  a  foundation  has  first  been  laid. 
— Krewson  v.  Purdom,  13  Or.  563,  11  P.  281. 
Washington.  Where,  for  the  purpose  of  impeaching  a 
witness  it  was  asked  if  he  remembered  having  a  conver- 
sation with  "V"  at  a  certain  saloon  "last  July,"  it  was 
held  that  the  "time,  place  and  circumstances,"  were  suffi- 
ciently indicated  to  justify  the  admission  of  V's  testimony 
as  to  such  conversation. — State  v.  Walters,  7  Wash.  246,  34 
P.   938. 

It  is  elementary  that  admissions  are  not  admissible  to 
impeach  a  witness  whose  attention  has  never  been  called 
to  the  time,  place,  or  circumstances  of  the  impeaching 
testimony.— State  v.  Schuman,  89  Wash.  9,  153  P.  1084; 
State  v.  Stone.  66  Wash.  625,  120  P.  76. 

NOTE    XLVII. 
(To  Article  131.) 

The  words  of  th<-  two  sections  of  it  A  is  Vict  c.  125, 
meant  to  be  represented  by  this  article  are  as  follows: 

22.  A  party  producing  a  witness  shall  not  hi-  allowed  to 
Impeach  lii.s  credit  by  general  evidence  of  had  character; 
but  he  may,  in  cast-  the  witness  shall,  in  the  opinion  of  the 
lodge,  prove  adverse,  contradict  him  hy  other  evidence,  or, 
by  leave  of  the  jun^e,  prove  that  he  has  made  at  other  times 


888  EXAMINATION  OF  WITNESSES. 

a  statement  inconsistent  with  his  present  testimony;  but 
before  such  last-mentioned  proof  can  be  given,  the  circum- 
stances of  the  supposed  statement,  sufficient  to  designate 
the  particular  occasion,  must  be  mentioned  to  the  witness, 
and  he  must  be  asked  whether  or  not  he  has  made  such 
statement. 

23.  If  a  witness,  upon  cross-examination  as  to  a  former 
statement  made  by  him  relative  to  the  subject-matter  of  the 
cause,  and  inconsistent  with  his  present  testimony,  does  not 
distinctly  admit  that  he  made  such  statement,  proof  may 
be  given  that  he  did  in  fact  make  it;  but  before  such  proof 
can  be  given,  the  circumstances  of  the  supposed  statement, 
sufficient  to  designate  the  particular  occasion,  must  be  men- 
tioned to  the  witness,  and  he  must  be  asked  whether  or  not 
he   has    made    such    statement. 

The  sections  are  obviously  ill-arranged;  but  apart  from 
this,  s.  22  is  so  worded  as  to  suggest  a  doubt  whether  a 
party  to  an  action  has  a  right  to  contradict  a  witness  called 
by  himself  whose  testimony  is  adverse  to  his  interests.  The 
words  "he  may,  in  case  the  witness  shall,  in  the  opinion  of 
the  judge,  prove  adverse,  contradict  him  by  other  evidence," 
suggest  that  he  cannot  do  so  unless  the  judge  is  of  that 
opinion.  This  is  not,  and  never  was,  the  law.  In  Greenough 
v.  Eccles,  5  C.  B.  n.  s.  p.  802,  Williams,  J.,  says:  "The  law 
was  clear  that  you  might  not  discredit  your  own  witness  by 
general  evidence  of  bad  character;  but  you  might,  neverthe- 
less, contradict  him  by  other  evidence  relevant  to  the  issue"; 
and  he  adds  (p.  803):  "It  is  impossible  to  suppose  that  the 
Legislature  could  have  really  intended  to  impose  any  fetter 
whatever  on  the  right  of  a  party  to  contradict  his  own  wit- 
ness by  other  evidence  relevant  to  the  issue — a  right  not 
only  established  by  authority,  but  founded  on  the  plainest 
good    sense." 

Lord  Chief  Justice  Cockburn  said  of  the  22d  section: 
"There  has  been  a  great  blunder  in  the  drawing  of  it,  and 
on  the  part  of  those  who  adopted  it."  *  *  *  "Perhaps  the 
better  course  is  to  consider  the  second  branch  of  the  section 
as  altogether  superfluous  and  useless  (p.  806)."  On  this  au- 
thority  I    have   omitted   it. 

For  many  years  before  the  Common-Law  Procedure  Act 
of  1854  it  was  held,  in  accordance  with  Queen  Caroline's 
Case  (2  Br.  &  Bing.  286-291),  that  a  witness  could  not  be 
cross-examined  as  to  statements  made  in  writing,  unless  the 
writing  had  been  first  proved.  The  effect  of  this  rule  in 
criminal  cases  was  that  a  witness  could  not  be  cross-exam- 
ined as  to  what  he  had  said  before  the  magistrates  without 
putting  in  his  deposition,  and  this  gave  the  prosecuting 
counsel  the  reply.  Upon  this  subject  rules  of  practice  were 
issued   by   the   judges   in    1837,    when   the   Prisoner's   Counsel 


EXAMINATION  OF  WITNESSES.  889 

Act  came  into  operation.  The  rules  are  published  in  7  C. 
&  P.  676.  They  would  appear  to  have  been  superseded  by 
the   28   Vict.   c.    18. 

Article  132. 
cross-examination  as  to  previous  statements  in  writing. 

A  witness  under  cross-examination  [or  a  wit- 
ness whom  the  judge  under  the  provisions  of  arti- 
cle 131  has  permitted  to  be  examined  by  the  party 
who  called  him  as  to  previous  statements  incon- 
sistent with  his  present  testimony]  may  be  ques- 
tioned as  to  previous  statements  made  by  him  in 
writing,  or  reduced  into  writing,  relative  to  the 
subject-matter  of  the  cause,  without  such  writing 
being  shown  to  him  [or  being  proved  in  the  first 
instance]  ;  but  if  it  is  intended  to  contradict  him 
by  the  writing,  his  attention  must,  before  such 
contradictory  proof  can  be  given,  be  called  to 
those  parts  of  the  writing  which  are  to  be  used 
for  the  purpose  of  contradicting  him.  The  judge 
may,  at  any  time  during  the  trial,  require  the  doc- 
ument to  be  produced  for  his  inspection,  and  may 
thereupon  make  such  use  of  it  for  the  purposes  of 
the  trial  as  he  thinks  fit.  (a) 

INCONSISTENT  STATEMENTS  IN  WRITING. 
Arkansas.  A  witness  may  be  impeached  by  introducing 
in  evidence  his  pleading  in  a  former  case,  made  under 
oath,  which  is  in  conflict  with  his  testimony  in  the  pres- 
ent case. — Texas  &  St.  Louis  Ry.  Co.  v.  Donnelly,  46 
Ark.  87. 

7  &  IS  Vict.  c.  125,  s.  24;  and  28  Vict.  c.  18,  s.  5.  I 
think  the  words  between  brackets  represent  the  meaning  of 
the  sections,  but  In  terms  they  apply  only  to  witnesses  under 
cross-examination — •'Witnesses    may    be    cross-examined,"    &c. 


890  EXAMINATION  OF  WITNESSES. 

Where,  in  an  action  to  recover  damages  for  killing 
stock,  the  plaintiff  having  testified  that  the  animal  killed 
was  worth  $75.00,  it  was  error  to  refuse  to  permit  the  de- 
fendant to  introduce  in  evidence,  in  order  to  contradict 
plaintiff,  the  assessment  list  of  his  property  recently 
signed  and  verified  by  him,  in  which  he  returned  the  ani- 
mal for  taxation  as  worth  $5.00. — Fordyce  v.  Hardin,  54 
Ark.  554,  16  S.  W.  576. 

California.  In  a  criminal  action  it  was  held  proper  to 
read  in  evidence  an  affidavit  made  by  defendant  in  sup- 
port of  his  motion  for  a  new  trial  in  a  civil  action  in  which 
he  was  a  party,  where  such  affidavit  tends  to  contradict  his 
testimony  in  his  examination  in  chief. — People  v.  Samon 
set,  97  Cal.  448,  32  P.  520. 

An  unverified  and  unsigned  complaint  of  a  party  and 
the  contents  were  not  shown  to  have  been  known  to 
him,  is  not  admissible  against  him  in  another  action  to 
contradict  his  present  testimony. — Solari  v.  Snow,  101 
Cal.  387,  35  P.  1004. 

Colorado.  In  a  criminal  action  an  affidavit  made  by  de- 
fendant to  procure  compulsory  process  for  witnesses, 
which  states  where  the  defendant  was  at  the  time  of  the 
crime  he  is  alleged  to  have  committed,  may  be  read  in 
evidence  against  him  to  show  that  he  was  not  at  such 
place.— Torris  v.  People,  19  Colo.  438,  36  P.  153. 
Oklahoma.  To  contradict  a  witness  by  evidence  given  by 
him  on  a  former  trial,  it  is  proper  to  allow  the  court 
stenographer  who  took  such  evidence  to  read  the  same 
to  the  jury  from  his  stenographic  notes  without  requiring 
that  they  be  transcribed  and  certified,  after  a  proper 
foundation  has  been  laid  and  witness  had  answered  that 
he  did  not  remember. — Johnson  v.  Moore,  (Okl.),  152  P. 
1073. 

Laying  Foundation. 
California.  A  witness  may  be  impeached  by  evidence  that 
he  has  made  at  other  times  statements  inconsistent  with 
his  present  testimony,  but  if  such  statements  are  in  writ- 
ing, they  must  be  shown  to  the  witness  before  any  ques- 
tions are  put  to  him  concerning  them. — People  v.  Ching 
Hing  Chang,  74  Cal.  389,  16  P.  201. 


EXAMINATION  OF  WITNESSES.  891 

Upon  the  cross-examination  of  a  witness  as  to  state- 
ments made  by  him  upon  a  former  trial,  he  has  the  stat- 
utory right  to  have  such  previous  statements  presented 
to  him  and  read,  if  in  writing. — People  v.  Lee  Chuck,  78 
Cal.  317,  20  P.  719. 

Where  it  is  attempted  to  impeach  the  testimony  of  a 
witness  by  showing  that  he  had  made  contradictory  state- 
ments in  a  writing,  a  proper  foundation  must  first  be  made 
for  such  impeaching  evidence. — Froeming  v.  Stockton 
Elec.   R.   Co.,   171   Cal.   401,   153   P.   712. 

Colorado.  Where  two  depositions  of  a  witness  were  taken 
by  the  defendant,  and  on  the  trial  he  read  the  last  one  in 
evidence,  and  in  rebuttal  plaintiff  offered  the  former  one 
in  evidence  for  the  purpose  of  showing  that  the  witness 
had  made  contradictory  statements  therein  from  those 
made  by  him  in  the  latter,  it  was  not  necessary  for  the 
purpose  of  their  introduction  as  impeaching  evidence  to 
lay  the  ordinary  foundation  therefor  by  interrogating  wit- 
ness as  to  whether  he  made  such  statements  and  the  time 
and  place  of  making  them. — Thompson  v.  Gregor,  11  Colo. 
531,    19    P.    461. 

Montana.  In  the  absence  of  a  deposition  from  the  court- 
room and  unaccounted  for,  a  witness  cannot  be  cross- 
examined  as  to  its  contents. — Melzner  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  51  Mont.  487,  153  P.  1019. 

New  Mexico.  For  the  purpose  of  impeaching  the  testi- 
mony of  a  witness  given  on  a  former  trial,  defendant  of- 
fered to  read  to  the  jury  the  record  of  the  testimony  of 
the  witness  in  such  trial;  but  it  was  held  not  error  to  re- 
fuse to  admit  this  testimony,  no  foundation  for  its  intro- 
duction having  been  laid,  either  by  showing  the  writing 
to  the  witness  or  reading  it  to  him  at  the  time  he  was 
interrogated.— United  States  v.  Fuller,  5  N.  M.  80,  20  P.  175. 

Oregon.  A  witness  cannot  be  interrogated  concerning 
oral  statements  made  by  him  for  the  purpose  of  being 
written  down,  and  which  were  reduced  to  writing,  with- 
out first  showing  the  writing  to  witness. —State  v.  Steeves, 
29  Or.  85,  43  P.  947. 


892  EXAMINATION  OF  WITNESSES. 

Texas.  A  letter  written  by  a  witness  cannot  be  used  to 
impeach  him  for  previous  contradictory  statements  made 
by  him  unless  his  attention  is  first  directed  to  it. — Burle- 
son v.  Collins,  (Tex.  Civ.  App.),  28  S.  W.  898. 

Article  133. 
impeaching  credit  of  witness. 

The  credit  of  any  witness  may  be  impeached  by 
the  adverse  party,  by  the  evidence  of  persons  who 
swear  that  they,  from  their  knowledge  of  the 
witness,  believe  him  to  be  unworthy  of  credit  upon 
his  oath.  Such  persons  may  not  upon  their  ex- 
amination in  chief  give  reasons  for  their  belief, 
but  they  may  be  asked  their  reasons  in  cross-ex- 
amination, and  their  answers  cannot  be  contra- 
dicted, (a) 

No  such  evidence  may  be  given  by  the  party  by 
whom  any  witness  is  called,  (b)  but,  when  such 
evidence  is  given  by  the  adverse  party,  the  party 
who  called  the  witness  may  give  evidence  in  reply 
to  show  that  the  witness  is  worthy  of  credit,  (c) 

IMPEACHMENT  OF  WITNESSES. 
Oregon.  In  this  state  it  is  provided  by  statute  that  a  wit- 
ness may  be  impeached  by  contradictory  evidence,  or  by 
evidence  that  his  general  reputation  for  truth  is  bad,  or 
that  his  moral  character  is  such  as  to  render  him  un- 
worthy of  belief,  but  not  by  evidence  of  particular  wrong- 
ful acts;  hence  a  party  who  is  a  witness  in  her  own  be- 
half cannot  be  impeached  by  a  letter  written  by  her  to 
another  person  containing  language  which  would  indicate 
that  she  was  unchaste.— Leverich  v.  Frank,   6   Or.   212. 

(a)  2   Ph.   Ev.    503-504;    T.   E.   ss.    1324-1325. 

(b)  17  &  18  Vict.  c.  125,  s.  2;  and  28  Vict.  c.  18,  s.  3. 

(c)  2   Ph.    Ev.    504. 


EXAMINATION  OF  WITNESSES.  893 

A  witness  may  be  impeached  by  contradictory  evidence, 
by  evidence  that  his  reputation  for  truth  is  bad,  or  that 
his  moral  character  is  such  as  to  render  him  unworthy  of 
belief,  or  by  evidence  that  he  has,  at  other  times  made 
statements  inconsistent  with  his  present  testimony. — 
Krewson  v.  Purdom,  13  Or.  563,  11  P.  281. 
Texas.  For  the  purpose  of  impeaching  a  witness  the  fol- 
lowing rules  should  govern:  1st.  The  inquiry  must  be 
restricted  to  the  general  character  of  the  party  sought  to 
be  impeached;  2nd.  The  impeaching  witness  must  speak 
from  general  reputation  and  not  from  private  opinions  as  . 
to  whether  the  character  of  the  impeached  witness  is 
good  or  bad  for  truth;  or  as  to  whether  the  general  repu- 
tation of  the  impeached  witness  is  such  as  to  entitle  him 
to  credit  on  oath. — Griffin  v.  State,  26  Tex.  App.  459,  8 
A.   S.  R.   460. 

Impeachment  of  Accused  as  Witness. 

See  Article  129. 

Where  defendant  takes  the  stand  as  a  witness,  he  may 
be  impeached  like  any  other  witness,  and  his  character 
for  veracity  can  be  impeached,  and  in  some  jurisdictions 
his  moral  character,  though  his  good  character  may  not 
previously  have  been  put  in  issue. — Paxton  v.  State,  108 
Ark.  316,  157  S.  W.  396;  Territory  v.  O'Hare,  1  N.  D.  30, 
44  N.  W.  1003;  Wilson  v.  State,  71  Tex.  Cr.  R.  426,  160  S. 
W.  967  (that  one  accused  of  larceny  was  a  prostitute) : 
Arkansas.  Where  a  defendant  testifies  himself  he  may 
be  cross-examined  as  to  whether  or  not  he  has  been  con- 
victed or  confined  in  the  penitentiary  for  the  purpose  of 
impeaching  him  as  a  witness  by  showing  his  general  rep- 
utation.—Werner  v.  State,  44  Ark.  122;  Smith  v.  State, 
74  Ark.  397,  85  S.  W.  1123;  Ware  v.  State,  91  Ark.  555,  121 
S.    W.   927. 

When  a  defendant  in  a  criminal  case  takes  the  stand 
as  a  witness,  he  is  subject  to  cross-examination  as  other 
witnesses;  his  character  for  veracity  may  be  impeached 
though  his  good  character  may  not  have  been  previously 
put   in  issue. — McCoy  v.   State,   46  Ark.   141. 

Where  defendant  took  the  stand  in  his  own  defense,  he 
thereby  made  himself  subject  to  impeachment  as  to  char- 


894  EXAMINATION  OP  WITNESSES. 

acter  as  any  other  witness. — Cook  v.  State,  109  Ark.  384, 
160  S.  W.  223. 

California.  Where  a  witness  may  be  impeached  by  proof 
of  general  bad  reputation  in  the  community  where  he 
lives  for  truth,  honesty  or  integrity,  counsel  should  form 
their  question  as  to  the  reputation  for  the  particular  trait 
sought  to  be  elicited,  and  not  ask  the  question  in  the  dis- 
junctive.—People  v.  Ryan,  108  Cal.  581,  41  P.  451. 

"The  moment  defendant  submitted  himself  as  a  wit- 
ness, his  character,  as  such  witness,  for  truth,  honesty 
and  integrity  was  involved,  and  he  became  subject  to  the 
same  rules  for  testing  his  credibility  before  the  jury  by 
impeachment  or  otherwise  as  any  other  witness." — People 
v.  Hickman,  113  Cal.  80,  45  P.  175. 

Where  the  defendant  takes  the  stand  and  testifies  in 
his  own  behalf  in  an  attempt  to  clear  himself  of  the  crime 
with  which  he  is  charged,  the  prosecution  may,  in  rebut- 
tal, introduce  witnesses  to  testify  as  to  his  bad  reputation 
for  truth,  honesty  and  integrity  in  the  vicinity  in  which 
he  lives.— People  v.  Hickman,  113  Cal.  80,  45  P.  175;  Peo- 
ple v.  Beck,  58  Cal.  212. 

Defendant  as  a  witness  may  be  impeached  by  showing 
his  bad  reputation  for  truth. — People  v.  Walker,  140  Cal. 
153,  73  P.  831. 

Where  an  accused  takes  the  stand  he  is  subject  to  the 
same  tests  for  ascertaining  the  truth  as  any  other  wit- 
ness. (Question  allowed:  "How  often  have  you  been  con- 
victed of  a  felony?") — People  v.  Moran,  25  Cal.  App.  472, 
144  P.  15?. 

Colorado.  Where  defendant  in  a  criminal  case  is  sworn 
as  a  witness  and  testifies  on  his  own  behalf,  he  occupies 
precisely  the  same  position  as  any  other  witness. — Mc- 
Keone  v.  People,  6  Colo.  346. 

Montana.  A  party  who  does  not  offer  himself  as  a  wit- 
ness, is  not  subject  to  impeachment. — State  v.  Jones,  51 
Mont.  390,  153  P.  282. 

Oklahoma.  If  a  person  charged  With  a  crime  takes  the 
stand  voluntarily  and  becomes  a  witness  against  his  co- 
defendant,  he  may  be  impeached  as  any  other  witness  for 
truth  and  veracity.— Frazee  v.  State,  (Okl.  Cr.),  152  P.  462. 


EXAMINATION  OF  WITNESSES.  895 

Texas.  When  an  accused  takes  the  stand  in  his  own  be- 
half, he  can  be  forced  to  testify  that  he  has  previously 
been  convicted  and  sent  to  the  penitentiary  and  served 
time  therein,  unless  such  conviction  is  too  remote.  Ac- 
cused required  to  state  that  he  had  been  in  the  peniten- 
tiary twice  before,  it  not  appearing  when,  admissible.) — 
Keets  v.  State,  (Tex.  Cr.  R.),  175  S.  W.  149. 
Wyoming.  Accused  taking  the  stand  as  a  witness  is  sub- 
ject to  impeachment  in  like  manner  as  any  other  witness. 
— Eads  v.   State.  17  Wyo.  490,   101  P.  946. 

Reputation   For  Truth  and  Veracity. 

Arkansas.  The  admission  of  testimony  as  to  the  reputa- 
tion of  a  witness  for  truth  and  veracity  at  some  other 
time  and  at  a  different  place  from  that  of  his  residence 
at  the  time  of  testifying,  is  in  the  discretion  of  the  court. 
—Snow  v.  Grace,  29  Ark.   131,  140. 

California.  An  inquiry  into  the  character  of  a  witness 
for  the  purpose  of  impeachment  must  be  restricted  to  his 
character  for  truth  and  veracity. — People  v.  Jesus  Yslas, 
27  Cal.  630. 

Oklahoma.  Where  it  is  sought  to  impeach  a  witness  by 
general  reputation,  the  inquiry  must  be  as  to  his  general 
character  or  reputation  for  truth  and  veracity  in  the  com- 
munity in  which  he  resides.  To  impeach  him  on  this  in- 
quiry, the  testimony  must  show  that  his  general  reputation 
for  truth  is  bad.— Richards  v.  State,  (Okl.  Cr.),  154  P.  72; 
Kirk  v.  State,  11  Okl.  Cr.  382,  145  P.  307;  Sims  v.  State, 
11  Okl.  Cr.  382,  146  P.  914. 

When  it  is  sought  to  impeach  a  witness  by  general  rep- 
utation, the  inquiry  and  the  answer  must  be  as  to  his 
general  character  or  reputation  for  truth  and  veracity  in 
the  community  in  which  he  resides. — Kirk  v.  State,  11 
Okl.  Cr.   203,   145  P.  307. 

Texas.  In  the  impeachment  of  a  witness  the  inquiry 
should  be  confined  to  his  general  character  for  truth,  and 
should  not  extend  to  general  moral  character. — Ayres  v. 
Duprey,   27  Tex.   593,   86  Am.   Dec.   657. 


896  EXAMINATION  OF  WITNESSES. 

Moral  Character. 

In  some  jurisdictions  a  witness  may  be  impeached  by 
evidence  that  his  general  reputation  for  truth  and  morality 
is  bad.— Bruder  v.  State,  110  Ark.  402,  161  S.  W.  1067; 
State  v.   Perkins,  21  N.   M.   135,   153   P.   258    (by  statute). 

Evidence  of  bad  character  for  chastity  is  not  permissible 
for  the  purpose  of  impeaching  the  testimony  of  a  witness. 
—People  v.  Jesus  Yslas,  27  Cal.  630;  Jones  v.  State,  13 
Tex.  168,  62  Am.  Dec.  550. 

Arkansas.  A  witness  may  be  impeached  by  showing  that 
impeaching  witness  knows  his  general  character  for 
morality  in  the  community,  and  that  it  is  bad. — Majors  v. 
State,  29  Ark.   112. 

New  Mexico.  By  statute,  a  witness  may  be  impeached  by 
general  evidence  of  bad  moral  character,  and  there  is  no 
restriction  to  reputation  for  truth  and  veracity. — State  v. 
Perkins,  21  N.  M.  135,  153  P.  258. 

Oklahoma.  The  truthfulness  of  a  witness  cannot  be  im- 
peached by  proof  of  general  bad  character  for  morality, 
or  by  proof  of  specific  acts  tending  to  show  want  of  moral- 
ity.—Litchfield  v.   State,  8  Old.  Cr.  164,  126  P.  707. 

A  witness  cannot  be  impeached  by  general  bad  character 
for  morality,  or  by  general  reputation  for  virtue  and 
chastity.— Kennedy  v.  Pawnee  Trust  Co.,  34  Okl.  140,  126 
P.  548. 

Oregon.  The  credibility  of  a  witness  may  be  impeached 
for  immorality,  but  only  by  general  reputation,  and  not 
by  evidence  of  specific  acts. — Redsecker  v.  Wade,  69  Or. 
153,  138  P.  485. 

Testimony  as  to  moral  character  of  a  witness  is  one  of 
the   statutory   modes   of  impeaching   a   witness,   including 
defendant.— State  v.  O'Donnell,  77  Or.  116,  149  P.  536. 
Texas.     Bad  moral  character  is  admissible  to  impeach  a 
witness.— Kennedy  v.  Upshaw,  66  Tex.  442,  1  S.  W.  308. 

The  general  reputation  of  a  witness  for  chastity  is  in- 
admissible.—Woodward  v.  State,  42  Tex.  Cr.  R.  188,  58 
S.  W.  135. 

It  is  not  permissible  to  impeach  a  witness  for  truth  and 
veracity  by  showing  that  his  or  her  reputation  for  chas- 


EXAMINATION  OF  WITNESSES.  897 

tity  is  not  good.  (Attempt  to  prove  by  another  witness 
bad  reputation  of  witness  for  chastity.) — Hall  v.  State,  43 
Tex.  Cr.  R.  479,  66  S.  W.  783. 

Washington.  The  character  of  a  witness  for  immorality 
may  be  inquired  into  either  upon  cross-examination  or  by 
a  resort  to  general  reputation. — State  v.  Jackson,  83  Wash. 
514,  145  P.  470. 

In  Washington,  the  following  instruction  is  given  as 
appropriate:  "That  the  jury  are  the  sole  judges  of  the 
credibility  of  the  witnesses,  and  the  weight  to  be  given 
to  their  testimony;  and  in  passing  upon  the  testimony  of 
any  witness  the  jury  have  a  right  to  take  into  considera- 
tion the  interest  any  such  witness  may  have  in  the  result 
of  this  trial,  the  manner  of  testifying,  the  former  life  or 
conduct,  and  the  addiction  to  immoral  habits  of  any  such 
witness  as  given  by  herself  (or  otherwise  shown),  in  de- 
termining the  credibility  of  any  such  witness,  and  the 
weight  to  be  given  the  testimony  of  such  witness." — State 
v.  Gaul,  88  Wash.  295,  152  P.  1029. 

That  girls  as  witnesses  were  of  immoral  character  may 
be  shown  to  affect  credibility. — State  v.  Wingard,  92  Wash. 
219,    158   P.   725. 

Truth,  Honesty  and  Integrity. 
California.  For  purposes  of  impeaching  a  witness  the  in- 
quiry is  not  confined  to  his  reputation  for  truth  and  verac- 
ity, but  may  extend  to  his  general  reputation  for  truth, 
honesty  and  integrity.— Heath  v.  Scott,  65  Cal.  548,  4  P. 
557;  People  v.  Silva,  121  Cal.  668,  54  P.  146. 
Idaho.  By  statute,  a  witness  may  be  impeached  by  evi- 
dence that  his  general  reputation  for  truth,  honesty  or 
integrity  is  bad.— State  v.  Trego,  25  Ida.  625,  138  P.  1124. 
By  statute  a  witness  may  be  impeached  by  a  party 
against  whom  he  is  called  by  proof  that  his  general  repu- 
tation for  truth,  honesty  or  integrity  is  bad. — Boeck  v. 
Boeck,  29  Ida.  639,  161  P.  576. 

Oregon.  By  statute  a  witness  may  be  impeached  by  show- 
ing that  his  general  reputation  for  credibility  is  bad,  or 
that  his  moral  character  is  such  as  to  render  him  unworthy 
of  belief;    but  he  cannot  be  impeached   by  showing  that 


898  EXAMINATION  OF  WITNESSES. 

his  general  reputation  for  integrity  is  bad.— Mcintosh  r. 
McNair,  53  Or.  87,  99  P.  74. 

Texas.  Whether  witness  had  a  general  reputation  a*  a 
gambler  inadmissible  to  impeach. — Mares  v.  State,  71  'JL*«*. 
Cr.  R.  303,  158  S.  w    U30. 

Reputation  As  To  Sundry  Matters. 

Oklahoma.  Where  the  purpose  of  testimony  is  to  impeach 
a  witness  for  want  of  truth  and  veracity,  the  inquiry  and 
the  answer  must  be  as  to  his  general  character  or  repu- 
tation for  truth  and  veracity  in  the  community  in  which 
he  resides,  and  testimony  as  to  the  general  reputation  of  a 
defendant  for  being  a  bootlegger  is  incompetent  to  impeach 
the  credibility  of  a  defendant  as  a  witness  in  his  own 
behalf,  or  for  any  other  purpose. — Kirk  v.  State,  11  Okl. 
Cr.  203,  145  P.  307;  Upton  v.  State,  (Okl.  Cr.),  160  P.  1134. 
But  it  has  been  held  that  the  fact  may  be  drawn  out  on 
cross-examination. — Crawford  v.  Ferguson,  5  Okl.  Cr.  377, 
115  P.  278;   Fowler  v.  State,  8  Okl.  Cr.  130,  126  P.  831. 

Particular  Facts. 
Arkansas.     A  witness  cannot  be  impeached  by  particular 
acts  of  unchastity. — Pleasant  v.  State,  15  Ark.  624. 
California.     Defendant  cannot  be  asked   whether  he  had 
been  a  doorkeeper  of  a  gambling  house. — People  v.  Hamb- 
lin,   68   Cal.   101,   8   P.    687. 

A  witness  cannot  be  impeached  by  showing  him  to  be  a 
person  of  no  religious  belief. — People  v.  Copsey,  71  Cal. 
548,  12  P.  721. 

In  a  criminal  case  it  was  error,  for  the  purpose  of  im- 
peaching the  testimony  of  a  witness,  to  show  that  she  had 
improper  relations  with  another  witness  while  the  two 
were  in  jail  together. — People  v.  Sherman,  (Cal.),  32  P. 
879. 

It  may  not  be  shown  that  the  wife  of  deceased  and 
made  a  witness  by  the  state,  had  been  an  inmate  of  a 
house  of  prostitution.— People  v.  Chin  Hane,  108  Cal.  597, 
41  P.  697. 

In  a  prosecution  for  rape  under  the  age  of  consent,  the 
fact   that   the   prosecutrix   actually   consented    cannot   be 


EXAMINATION  OF  WITNESSES.  899 

admitted  to  Impeach  her  credit  as  a  witness. — People  v. 
Harlan,   133  Cal.  16,  65  P.  9. 

Idaho.  In  this  state  it  is  provided  that  "in  every  case 
the  credibility  of  the  witness  may  be  drawn  in  question 
by  evidence  affecting  his  character  for  truth,  honesty  and 
integrity."  which  is  simply  declaratory  of  the  common 
law.  But,  for  the  purpose  of  impeaching  the  credit  of 
witnesses,  the  examination  must  be  confined  to  general 
reputation  and  is  not  permitted  as  to  particular  acts. — 
People  v.  Barnes,  2  Ida.  161,  9  P.  532. 

Defendant  in  a  rape  case  cannot  be  impeached  by  evi- 
dence of  an  attempt  to  debauch  a  child  a  year 'before  the 
crime  in  question. — State  v.  Anthony,  6  Ida.  383,  55  P.  884. 
Habitual  use  of  morphine  or  opium  may  be  shown  to 
affect  credit.— State  v.  Fong  Loon,  29  Ida.  248,  158  P.  233. 
Texas.  That  a  witness  has  harbored  horse  thieves  is  in- 
admissible to  impeach. — McAfee  v.  State,  17  Tex.  App.  135. 
Testimony  that  a  witness  has  committed  certain  offenses 
is  inadmissible.— Fields  v.  State,  39  Tex.  Cr.  R.  488,  46 
S.  W.  814. 

In  impeachment  of  a  witness  the  evidence  should  be  con- 
fined to  his  general  reputation  for  truth  and  veracity,  and 
it  is  not  competent  to  introduce  particular  instances  of 
untruthfulness. — Missouri,  Kansas  &  T.  Ry.  Co.  v.  Adams, 
42  Tex.  Civ.  App.  274,  114  S.  W.  453. 

Evidence  of  acts  of  the  prosecuting  witness  with  others 
admissible  not  as  a  defense  but  going  to  the  credibility 
of  the  witness.— Wade  v.  State,  (Tex.  Cr.  R.),  144  S.  W.  246. 
Proof  that  an  accused  or  any  other  witness  associated 
with  lewd  women  or  kept  bad  company  is  not  admissible 
to  impeach.— Ballard  v.  State,  71  Tex.  Cr.  R.  587,  160  S. 
W.  716. 

An  impeaching  witness  cannot  show  that  the  prosecutor 
in  a  robbery  case  has  been  criminally  intimate  with  a 
young  woman.— Phillips  v.  State,  (Tex.  Cr.  R.),  164  S. 
W.   1004. 

That  a  woman  had  been  raped  is  not  admissible  to  affect 
her  credit— Carter  v.  State,  75  Tex.  Cr.  R.  110,  170  S.  W. 
739. 


900  EXAMINATION  OF  WITNESSES. 

A  witness  in  a  civil  action  cannot  be  impeached  by  re- 
quiring him  to  testify  to  discreditable  acts  on  his  part 
having  no  material  bearing  on  the  issues  involved  in  the 
case,  or  by  the  testimony  of  witnesses  other  than  the  one 
sought  to  be  discredited.  (Whether  plaintiff,  who  testified 
for  himself,  had  left  North  Carolina  because  he  had  been 
indicted  or  jumped  a  bail  bond.) — Turner  v.  McKinney, 
(Tex.   Civ.  App.),   182   S.  W.   431. 

Proof  that  any  witness  who  testifies  has  committed  any 
given  crime  is  inadmissible,  either  by  the  witness  himself 
or  by  others.  (Violation  of  liquor  law;  state's  main  wit- 
ness having  denied  a  question  asked,  whether  he  had  not 
sold  liquors  to  certain  named  persons,  his  answer  is  con- 
clusive.)—Hawthorne  v.  State,  (Tex.  Cr.  R.),  190  S.  W.  184. 

Cross-Examination   As  To   Collateral    Facts. 

Arkansas.  Questions  asked  a  witness  need  not  be  an- 
swered where  they  will  subject  him  to  disgrace  or  degrade 
him,  unless  the  evidence  is  material  to  the  case,  or  tends 
to  impeach  his  credibility. — Cook  v.  State,  102  Ark.  363, 
144  S.  W.  221. 

Prosecutrix  in  a  statutory  rape  case  may  be  asked,  for 
purposes  of  impeachment,  if  she  has  been  intimate  with 
other  men.— King  v.  State,  106  Ark.  160,  152  S.  W.  990. 

Defendant,  taking  the  stand  as  a  witness,  may  be  asked 
if  he  did  not  trade  wives  with  another  man. — Leonard  v. 
State,  106  Ark.  449,  153  S.  W.  590. 

California.  A  witness  cannot  be  impeached  by  evidence 
of  particular  wrongful  acts,  nor  is  it  proper  to  question 
the  witness  as  to  such  matters  on  cross-examination. 
(Question  to  witness  as  to  how  many  gentlemen  she  had 
gone  to  lunch  with  at  a  certain  place  when  her  husband 
was  not  present.)— Sharon  v.  Sharon,  79  Cal.  633,  22  P.  26. 

That  a  witness  for  the  state  had  been  a  prostitute  is 
inadmissible  to  affect  credit.— People  v.  Chin  Hane,  108 
Cal.  597,  41  P.  697. 

A  witness  cannot  be  compelled  to  admit  that  she  had 
lived  with  her  husband  before  marriage.— Pyle  v.  Piercy, 
122  Cal.  383,  55  P.  141. 


EXAMINATION  OF  WITNESSES.  901 

Kansas.  For  the  purpose  of  judging  the  character  and 
credit  of  a  witness,  he  may  be  cross-examined  as  to  spe- 
cific facts  tending  to  disgrace  or  degrade  him,  although 
collateral  to  the  main  issue,  and  touching  on  matters  of 
record.  (Prosecution  for  receiving  stolen  goods;  ques- 
tions as  to  having  been  under  arrest  and  what  he  was  n. 
rested  for.) — State  v.  Greenburg,  59  Kan.  404,  53  P.  61. 
New  Mexico.  That  defendant  had  been  cohabiting  for 
nine  years  with  one  to  whom  she  was  not  married,  is  ad- 
missible on  cross-examination  as  affecting  her  credibility. 
—Territory  v.  DeGutman,  8  N.  M.  92,  42  P.  68. 
North  Dakota.  A  defendant  who  takes  the  stand  in  his 
own  defense  occupies  no  better  position  than  any  other 
witness,  and,  within  the  limits  of  a  sound  judicial  discre- 
tion, may  be  cross-examined  as  to  specific  collateral  facts 
for  the  sole  purpose  of  affecting  his  credibility.  This  is 
the  rule  as  established  by  the  decided  preponderance  of 
authority;  but  a  different  rule  prevails  in  certain  states, 
as  in  Oregon,  California  and  Missouri,  where  statutes  have 
restricted  the  right  of  cross-examination  to  matters  drawn 
out  in  chief.  (Question  whether  he  had  passed  under  dif- 
ferent names  than  his  own,  and  had  been  in  jail  at  dif- 
ferent times  and  places.) — Territory  v.  O'Hare,  1  N.  D. 
30,   44   N.  W.   1003. 

For  purposes  of  impeachment,  a  defendant  who  takes 
the  stand  may  be  cross-examined  as  to  collateral  crimes, 
even  though  the  answer  tends  to  degrade  him.  (Charge 
of  maintaining  nuisance;  whether  since  his  release  from 
imprisonment  under  a  former  conviction  and  before  his 
arrest  in  this  case,  he  had  been  arrested  charged  with  a 
similar  offense,  and  whether  or  not  he  had  resisted  the 
officer  who  made  the  arrest.) — State  v.  Rozum,  8  N.  D. 
548,   80   N.  W.   477. 

Oklahoma.  Prosecuting  witness  in  grand  larceny  cannot 
be  asked  about  his  married  relations,  or  whether  he  had 
committed  abortion.— Flohr  v.  Territory.  14  Okl.  477,  78 
P.  565. 

A  witness  may  be  cross-examined  as  to  whether  he  is 
a  bootlegger— Crawford  v.  Ferguson,  5  Okl.  Cr.  377,  115 
P.  278;  Fowler  v.  State,  8  Okl.  Cr.  130,  126  P.  831. 


902  EXAMINATION  OF  WITNESSES. 

Texas.  The  rule  authorizing  an  inquiry  on  the  cross-ex- 
amination of  a  witness,  as  to  whether  he  has  spent  much 
of  his  time  in  jail,  charged  with  criminal  felonies  or  of- 
fenses involving  moral  turpitude,  or  has  been  convicted 
of  such  offenses,  for  the  purpose  of  impeaching  the  credit 
of  such  witness,  has  long  been  the  established  rule  in  this 
state  (in  criminal  cases). — Payne  v.  State,  40  Tex.  Cr.  R. 
290,  50  S.  W.  363. 

A  witness  may  be  asked. if  she  is  a  common  prostitute, 
but  her  answer  cannot  be  contradicted. — Hall  v.  State, 
43  Tex.  Cr.  R.  479,  66  S.  W.  783. 

In  a  prosecution  for  murder  a  witness  for  the  prosecu- 
tion was  asked  if  he  had  not  as  jury  commissioner  frau- 
dulently endeavored  to  procure  a  jury  that  would  convict 
a  certain  person.  His  answer  cannot  be  denied. — Lank- 
ster  v.  State,    (Tex.  Cr.  R.),  72  S.  W.  388. 

On  cross-examination  the  state  may  show  that  witness 
is  a  prostitute. — Brittain  v.  State,  47  Tex.  Cr.  R.  597,  85 
S.  W.  278. 

The  testimony  of  a  witness  on  cross-examination  that  he 
was  not  a  professional  gambler  is  conclusive  and  cannot 
be  contradicted. — Mares  v.  State,  71  Tex.  Cr.  R.  303,  158 
S.  W.  1130. 

The  fact  of  commission  of  crime  is  inadmissible  to  im- 
peach a  witness  who  had  neither  been  indicted  nor  con- 
victed.—Kaufman  v.  State,  70  Tex.  Cr.  R.  438,  159  S.  W.  58. 

In  a  prosecution  for  the  killing  of  his  wife's  paramour, 
accused  should  not  be  asked  if  he  had  not  had  trouble 
with  another  man  about  being  intimate  with  his  wife  be- 
fore he  married  her;  and  where  such  question  was  put 
to  defendant  and  answered  in  the  negative  it  was  error 
to  show  the  fact  by  another  witness. — Ballard  v.  State, 
71   Tex.   Cr.   R.   587,    160    S.   W.   716. 

Larceny  from  person.  That  accused  was  a  prostitute 
can  be  drawn  out  of  her  on  cross-examination,  the  same 
as  from  any  other  witness. — Wilson  v.  State,  71  Tex.  Cr. 
R.  426,  160  S.  W.  967. 

Utah.  If  a  witness  has  been  charged  with  a  crime,  or 
arrested  or  indicted  for  it,  he  may  be  asked  about  it  on 


EXAMINATION  OF  WITNESSES.  903 

cross-examination,  and,  when  such  facts  are  irrelevant  to 
the  matter  in  issue,  the  party  putting  the  questions  is 
bound  by  the  answers  of  the  witnesses.  He  cannot  call 
other  witnesses,  and  prove  that  the  answers  are  false. — 
People  v.  Hite,  8  Utah  461,  33  P.  254. 
Washington.  Rape.  Prior  acts  of  prosecutrix  with  third 
persons  inadmissible  to  affect  credit,  either  on  cross-ex- 
amination or  by  testimony  of  other  witnesses. — State  v. 
Holcomb,  73  Wash.  652,  132  P.  416;  State  v.  Gay,  82  Wash. 
423.  144  P.  711. 

Where  prosecuting  witness  was  asked  whether  she  used 
cocaine,  or  morphine,  or  any  drugs,  her  answer  cannot 
be  disputed. — State  v.  Schuman,  89  Wash.  9,  153  P.  1084. 
Wyoming.  Inquiry  may  be  made  as  to  specific  instances 
of  recent,  but  not  remote,  misconduct  of  a  witness  upon 
cross-examination,  within  proper  limits,  for  the  purpose 
of  affecting  his  credibility.  In  such  case  his  answers  pre- 
clude further  inquiry,  and  extrinsic  evidence  of  such  col- 
lateral matter  is  not  permissible. — Eads  v.  State,  17  Wyo. 
490,   101   P.   946. 

Charge  of  Crime,  or  Arrest. 

That  a  witness  has  been  charged  with  crime  or  arrested 
is  not  admissible  to  impeach. 

California:  People  v.  Hamblin,  68  Cal.  101,  8  P.  687  (de- 
fendant cross-examined  as  to  whether  he  had  been  ar- 
rested for  shooting  at  persons);  People  v.  Silva,  121  Cal. 
668,  54  P.  146  (question  asked  witness  on  cross-examina- 
tion if  she  was  not  confined  in  the  county  jail  about  eight 
months  continuously,  charged  with  cattle  stealing). 
Oklahoma:  Corliss  v.  State,  (Okl.  Cr.),  159  P.  1015  (main- 
taining a  place  where  intoxicating  liquors  were  kept  and 
sold;  question  whether  defendant  had  been  arrested  on  a 
similar  charge). 

South  Dakota:  Richardson  v.  Gage,  28  S.  D.  390,  133  N. 
W.  692  (if  defendant  had  not  been  arrested  five  years 
ago  for  cattle  stealing,  asked   on   cross-examination). 

Arkansas.  Action  on  insurance  policy.  Cross-examination 
of  plaintiff  as  to  whether  he  had  been  charged  before  a 


004  AMTNATION  OF  WITNESSES. 

grand  with    the   crime   of  arson,   improper. — Stanley 

v.  Aetna  Ins.  Co..  70  Ark.  107,  66  S.  W.  432. 
Wyc;rin  .  Aleve  charges  or  accusations  may  not  be  in- 
quire:! into  of  a  witness  on  cross-examination,  since  they 
are  consistent  with  innocence  and  may  exist  without 
moral  delinquency.  (Fact  of  arrest  for  shooting  a  man 
in  a  bawdy  house,  not  admissible.) — Eads  v.  State,  17 
Wyo.   490,    101   P.   946. 

Indictment,   As    Impeachment    In    Civil    Cases. 
Arkansas.     The  fact  that  a  man  has  been  indicted  is  no 
ground  to  reject  his  testimony. — Kincaid  v.  Price,  82  Ark. 
20,  100  S.  W.  76. 

Texas.  It  is  not  competent  to  impeach  a  witness  in  a 
civil  case  by  proof  that  he  has  been  indicted  for  a  felony 
or  other  crime,  but  the  inquiry  should  be  confined  to  evi- 
dence of  general  reputation  for  truthfulness. — Missouri, 
K.  &  T.  Ry.  Co.  v.  Creason,  101  Tex.  335,  107  S.  W.  537; 
Abilene  &  S.  Ry.  Co.  v.  Burleson,  (Tex.  Civ.  App.),  157 
S.  W.  177;  Western  Assur.  Co.  v.  Hillyer-Deutsch-Jarratt 
Co.,   (Tex.  Civ.  App.),  167  S.  W.  816 

Indictment,  As  Impeachment,  In  Criminal  Cases. 
Arkansas.     The  state  cannot  impeach  the  character  of  a 
witness,  discredit  him  before  a  jury,  or  impair  the  weight 
of  his  testimony  by  evidence  that  he  had  been  indicted 
for  a  felony.— Carr  v.   State,   43  Ark.   99. 

On  trial  for  larceny  it  was  error  to  ask  defendant  on 
cross-examination  if  he  had  not  been  three  times  indicted 
for  hog  stealing,  though  he  answered  that  he  had  been 
acquitted  each  time. — Bates  v.  State,  60  Ark.  450,  30 
S.  W.  890. 

California.  It  is  improper  to  ask  of  a  witness  whether  he 
has  been  indicted.— People  v.  Warren,  134  Cal.  202,  66  P. 
212. 

Oklahoma.  It  is  improper  to  ask  a  witness  if  he  had  ever 
been  indicted,  arrested  or  imprisoned  before  conviction 
for  any  offense.— Porter  v.  State,  8  Old.  Cr.  64,  126  P.  699. 
Texas.  In  Texas  the  fact  that  a  witness,  whether  defend- 
ant taking  the  stand,  or  another,  has  been  indicted  for  a  fel- 


EXAMINATION  OF  WITNESSES.  905 

ony  or  an  offense  involving  moral  turpitude,  may  be  shown, 
to  affect  credibility.— Bolton  v.  State,  (Tex.  Cr.  R.),  39 
S.  W.  672  (indictment  for  larceny  5  years  previous); 
Clark  v.  State,  38  Tex.  Cr.  R.  30,  40  S.  W.  992  (indictment 
for  similar  offense  of  assault  with  intent  to  commit  rape) ; 
Bruce  v.  State,  39  Tex.  Cr.  R.  26,  44  S.  W.  852  (that  de- 
fendant was  then  under  indictment  for  perjury) ;  Crockett 
v.  State.  40  Tex.  Cr.  R.  173,  49  S.  W.  392  (violation  of 
local  option  law;  that  defendant  had  been  indicted  for 
assault  with  intent  to  murder) ;  Wilborn  v.  State,  (Tex. 
Cr.  R.),  64  S.  W.  1058  (accused  asked  if  she  had  not  been 
previously  indicted  for  a  similar  offense  of  assault  with 
intent  to  murder);  Powell  v.  State,  (Tex.  Cr.  R.),  70 
S.  W.  218  (murder;  cross-examination  as  to  indictment 
for  assault  with  intent  to  murder) ;  Jones  v.  State,  44 
Tex.  Cr.  R.  405,  71  S.  W.  962  (same;  cross-examination 
as  to  indictment  for  abducting  a  child) ;  Bearden  v.  State, 
44  Tex.  Cr.  R.  578,  73  S.  W.  17  (same;  cross-examination 
as  to  indictment  for  cattle  stealing) ;  Payne  v.  State,  40 
Tex.  Cr.  R.  290,  50  S.  W.  363  (accused  may  be  asked  if 
he  had  not  been  indicted  for  the  burglary  of  another 
house  than  the  one  in  question);  Asbeck  v.  State,  70  Tex. 
Cr.  R.  225,  156  S.  W.  925  (a  witness  in  a  murder  case 
may  be  asked  if  he  was  not  then  under  indictment  charged 
with  seduction);  Thompson  v.  State,  72  Tex.  Cr.  R.  6,  160 
S.  W.  685  (indictment  for  arson);  Ross  v.  State,  72  Tex. 
Cr.  R.  611,  163  S.  W.  433  (other  indictments  against  ac- 
cused taking  stand  as  witness,  charging  him  with  selling 
liquor);  Martoni  v.  State.  (Tex.  Cr.  R.),  167  S.  W.  349 
(selling  whiskey,  defendant  a  witness;  been  indicted  for 
various  offenses,  and  indictments  pending);  'Whit fill  v. 
State,  (Tex.  Cr.  R),  169  S.  W.  681  (accused  as  witness; 
indictment  pending  charging  him  with  burglary);  Villa- 
real  v.  State.  (Tex.  Cr.  R.),  lSi'  S.  \V.  332  (cross-examina- 
tion of  accused,  that  he  was  under  Indictment  for  horse 
theft):  Baker  v.  State,  (Tex.  Cr.  IM.  187  S.  W.  949  (ac- 
cused a  witness;  state  ina\  -how  that  lie  had  been  indicted 
for  felony  less  than  7  years  before;  he  may  in  turn  show 
that  he  had  been  acquitted  >. 


906  EXAMINATION  OF  WITNESSES. 

Indictment  for  offenses  not  involving  moral  turpitude 
cannot  be  shown  in  impeachment  of  credibility. — Brittain 
v.  State.  36  Tex.  Cr.  R.  406,  37  S.  W.  758  (that  defendant 
was  under  other  indictments  for  assault  or  for  carrying 
weapons) ;  Williford  v.  State,  36  Tex.  Cr.  R.  414,  37  S.  W. 
761  (that  defendant  had  been  twice  fined  for  fighting); 
Fitzpatrick  v.  State,  37  Tex.  Cr.  R.  20,  38  S.  W.  806  (arrest 
or  conviction  of  simple  assault  and  battery) ;  Stewart  v. 
State,  (Tex.  Cr.  R.),  38  S.  W.  1144  (violation  of  local 
option  law;  that  he  had  been  arrested  in  other  cases  for 
like  offenses) ;  Bain  v.  State,  38  Tex.  Cr.  R.  635,  44  S.  W. 
518  (carrying  a  pistol;  charged  with  same  offense);  Marks 
v.  State,  (Tex.  Cr.  R.),  78  S.  W.  512  (violation  of  local 
option  law;  indictment  for  similar  offense);  Hays 
v.  State,  47  Tex.  Cr.  R.  149,  82  S.  W.  511  (same);  Webb 
v.  State,  47  Tex.  Cr.  R.  305,  83  S.  W.  394  (indictment  for 
card  playing). 

A  witness  may  be  impeached  by  showing  indictment  for 
felony,  but  the  court  should  limit  the  proof  of  indictment 
to  its  legal  effect  of  impeachment. — Webb  v.  State,  47 
Tex.  Cr.  R.  305,  83  S.  W.  394. 

The  facts,  brought  out  on  cross-examination,  that  wit- 
ness had  been  indicted  and  convicted  of  horse  theft 
nearly  thirty  years  ago,  and  indicted  but  not  convicted 
of  murder  the  same  year,  are  not  admissible  to  impeach, 
as  being  too  remote. — Gardner  v.  State,  55  Tex.  Cr.  R. 
400,  117   S.  W.  148. 

Where  there  has  been  no  indictment,  the  fact  that  a 
complaint  was  filed  is  not  admissible  to  impeach. — King 
v.  State,   (Tex.  Cr.  R.),  148  S.  W.  324. 

A  witness  can  only  be  impeached  as  to  other  offenses 
by  showing  that  he  has  been  legally  charged  with  a  felony 
or  a  misdemeanor  imputing  moral  and  legal  turpitude. — 
Ballard  v.  State,  71  Tex.  Cr.  R.  587,  160  S.  W.  716. 

It  may  be  shown  that  a  witness  was  indicted  for  felony, 
though  sentence  upon  his  subsequent  conviction  was  sus- 
pended.—Bush  v.  State,   (Tex.  Cr.  R.),  189  S.  W.  158. 

A  witness  can  be  impeached  by  the  adverse  party  by 
proving  by  the  witness  on  cross-examination  that  within  a 


EXAMINATION  OF  WITNESSES.  907 

period  not  too  remote  he  had  been  Indicted  or  convicted 
of  a  felony  or  misdemeanor  imputing  moral  turpitude. — 
Hawthorne  v.  State,   (Tex.  Cr.  R.),  190  S.  W.  184. 

Conviction  of  Crime. 

The  fact  that  a  witness,  whether  the  accused  or  other 
person,  has  been  convicted  of  a  crime,  and  served  time 
therefor,  may  be  shown,  either  by  the  witness  himself, 
or  by  the  record  of  conviction,  in  order  to  affect  his  credi- 
bility, provided  that  such  conviction  is  not  deemed  to  be 
too  remote: 

Arkansas:  Smith  v.  State,  74  Ark.  397,  85  S.  W.  1123 
(burglary;  conviction  of  petty  larceny);  Seibert  v.  State, 
121  Ark.  258,  180  S.  W.  990  (selling  liquor;  that  defendant 
had  been  convicted  of  selling  liquor  before,  admissible  on 
cross-examination) . 

California:  People  v.  Warren,  134  Cal.  202,  66  P.  212  (by 
statute,  brought  out  either  by  cross-examination  or  by 
record  of  judgment). 

Oklahoma:  Busby  v.  State,  10  Okl.  Cr.  343,  136  P.  598 
(seventeen  years  before,  admissible). 

Texas:  Spiller  v.  State,  61  Tex.  Cr.  R.  555,  135  S.  W. 
549  (witness  on  cross-examination  forced  to  admit  he  was 
sent  to  the  penitentiary  fifteen  or  twenty  years  ago  for 
two  years;  too  remote);  Vick  v.  State,  71  Tex.  Cr.  R. 
50,  159  S.  W.  50  (accused  as  witness;  admission  that  he 
had  been  convicted  of  horse  theft  thirteen  years  before 
held  too  remote,  he  being  a  boy  at  the  time) ;  Turner  v. 
State,  71  Tex.  Cr.  R.  477,  160  S.  W.  357  (accused  as  wit- 
ness; conviction  of  crime  eighteen  years  before,  and 
served  term  of  eighteen  months,  too  remote) ;  Waddle  v. 
State,  (Tex.  Cr.  R.),  165  S.  W.  591  (conviction  of  witness 
for  felony  twenty-one  years  ago,  too  remote);  Hamilton 
v.  State,  (Tex.  Cr.  R.),  168  S.  W.  536  (conviction  of  wit- 
ness for  felony  three  or  four  years  ago,  admissible). 

Violation  of  a  city  ordinance  is  not  a  crime  so  that  a 
conviction  thereof  is  admissible  to  impeach. — State  v. 
Crawford,  58  Or.  116,  113  P.  440;  Triphonoff  v.  Sweeney, 
65  Or.  299,  130  P.  979;  Redsecker  v.  Wade,  69  Or.  153, 
138   P.   485;    but  conviction   in   a   police  court  of  assault, 


908  EXAMINATION  OP  WITNESSES. 

punishable  under  a  city  ordinance  as  a  misdemeanor,  is 
admissible,  as  it  is  a  crime. — Marshall  v.  Dunn,  (Wash.), 
160  P.  298. 

Nevada.  In  a  prosecution  for  murder,  where  the  defend- 
ant had  offered  himself  as  a  witness  in  his  own  behalf, 
conviction  of  felonious  crimes  can  be  drawn  out  of  him  on 
cross-examination  as  going  to  his  credibility. — State  v. 
Lawrence,  28  Nev.  440,  82  P.  614. 

Oklahoma.  By  statute,  a  witness  may  be  discredited  by 
showing  on  cross-examination  that  he  has  been  convicted 
of  a  criminal  offense. — Kirk  v.  State,  11  Okl.  Cr.  203,  145 
P.  307. 

Texas.  The  conviction  of  a  witness  for  selling  liquor  is 
inadmissible  to  impeach,  it  being  not  a  felony  or  involving 
high  moral  turpitude. — Hightower  v.  State,  73  Tex.  Cr.  R. 
25S.  165  S.  W.  184. 

The  fact  of  conviction  is  inadmissible,  where  the  judg- 
ment of  conviction  was  set  aside,  indictment  quashed  and 
case  dismissed. — Bedford  v.  State,  (Tex.  Cr.  R.),  170  S. 
W.   727. 

When  an  accused  testifies  in  his  own  behalf  he  can  be 
forced  to  testify  that  he  has  previously  been  convicted 
and  sent  to  prison  and  served  time  therein,  unless  such 
conviction  is  so  remote  as  to  be  inadmissible. — Keets  v. 
State,   (Tex.  Cr.  R.),  175  S.  W.  149. 

A  witness  can  be  impeached  by  the  adverse  party  by 
proving  by  the  witness  on  cross-examination  that  within 
a  period  not  too  remote  he  had  been  indicted  or  convicted 
of  a  felony  or  misdemeanor  imputing  moral  turpitude. — 
Hawthorne  v.  State,   (Tex.  Cr.  R.),  190  S.  W.  184. 

Washington.  Witness  may  be  asked  if  she  had  not  been 
convicted  of  the  crime  of  running  a  house  of  prostitution. 
—Gardner  v.    Spalt,   86  Wash.   146,   149   P.   647. 

Wyoming.  Evidence  of  a  crime,  to  be  competent  and  rele- 
vant to  discredit  a  witness,  should  at  least  tend  to  prove 
moral  turpitude  or  a  lack  of  veracity.  (Conviction  in  a 
justice's  court  of  carrying  concealed  weapons,  not  admis- 
sible.)—Eads  v.  State,  17  Wyo.  490,  101  P.  946. 


EXAMINATION  OF  WITNESSES.  909 

General   Reputation. 
California.     It  is  error  for  the  court  to  tell  the  impeach- 
ing witness  that  he  could  only  testify  to  what  he  knew  of 
the   impeached   witness's   reputation  of  his   own   personal 
knowledge.— People  v.  Webster,  89  Cal.  572,  26  P.  1080. 

The  opinion  of  a  few  policemen  as  to  the  character  of  a 
witness  does  not  establish  his  reputation  in  the  commun- 
ity.—People  v.  Markham,  64  Cal.  157,  30  P.  620. 
Colorado.  General  repute  and  not  personal  knowledge 
must  be  testified  to  by  the  impeaching  witness. — Benesch 
v.  Waggner,  12  Colo.  534,  21  P.  706. 

Kansas.  The  fact  that  the  word  "general"  is  omitted  from 
the  question  as  to  reputation  does  not  render  the  evidence 
incompetent.— Coates  v.  Sulau,  46  Kan.  341,  26  P.  720. 
Oregon.  The  regular  mode  of  examining  into  the  general 
reputation  is  to  inquire  of  the  witness  first  whether  he 
knows  the  general  reputation  of  the  person  in  question 
among  his  neighbors,  and  if  his  answer  is  in  the  affirma- 
tive, then  he  may  be  asked  what  that  reputation  is.  (Er- 
roneous to  leave  out  the  word  "general.") — Page  v.  Finley, 
8  Or.  45. 

Texas.  If  the  impeaching  witness  understands,  when 
asked  if  he  knows  the  reputation  of  the  witness  whose 
credibility  is  being  attacked,  that  "reputation"  has  refer- 
ence to  his  "general"  reputation, — that  is,  what  is  gen- 
erally said  of  him  in  the  community  in  which  he  lives — 
then  the  absence  of  the  word  "general"  from  the  question 
will  not  render  it  so  defective  that  the  answer  thereto  will 
not  be  received. — St.  Louis  Southwestern  Ry.  Co.  v.  Gar- 
ber,  51  Tex.  Civ.  App.  70,  111  S.  W.  227. 

No  particular  form  of  question  is  prescribed  or  need  be 
adhered  to  in  eliciting  from  the  impeaching  witness  his 
knowledge  of  the  general  reputation  of  the  witness  sought 
to  be  impeached  for  truth  and  veracity.  ("Are  you  ac- 
quainted with,"  or  "Do  you  know  the  general  reputation 
of,"  the  witness  sought  to  be  impeached,  held  sufficient; 
so  also,  "Do  you  know  his  reputation,  how  is  he  generally 
regarded    for   truth   and    veracity    where   he    lives?") — St. 


910  EXAMINATION  OF  WITNESSES. 

Louis  Southwestern  Ry.  Co.  v.  Garber,  51  Tex.  Civ.  App. 
70,  111  S.  W.  227. 

Utah.  In  impeaching  credit  the  question  must  be  con- 
fined to  his  "general"  reputation  for  truth  and  veracity. — 
State  v.  Marks,  16  Utah  204,  51  P.  1089. 

Knowledge  of  Impeaching   Witness. 

California.  General  reputation  can  only  be  testified  to  by 
a  member  of  the  community  in  which  the  witness  resides. 
(Witness  going  into  a  community  and  making  inquiries  of 
twenty  persons  incompetent  to  impeach.)  Tingley  v. 
Times-Mirror,  151  Cal.  1,  89  P.  1097. 

The  ultimate  fact  to  be  established  is  the  witness's  per- 
sonal character,  and  it  is  considered  that  the  general 
opinion  of  his  character  held  by  persons  who  knew  him 
is  of  probative  value  as  evidence  of  his  real  character. 
Hence  the  witness  to  such  reputation  must  at  least  be 
acquainted  with  the  prevailing  impression  in  the  com- 
munity, as  disclosed  by  actions,  conduct,  or  conversations 
relating  to  the  character  in  issue,  although  it  is  not  nec- 
essary that  the  witness  testifying  should  know  that  the 
majority  of  the  community  have  that  impression. — Peo- 
ple v.  Cord,  157  Cal.  562,  108  P.  511. 

Colorado.  A  witness  not  residing  in  the  same  neighbor- 
hood as  defendant,  and  who  had  only  talked  with  two 
men  that  worked  for  him  and  a  neighbor,  is  incompetent 
as  an  impeaching  witness. — Vickers  v.  People,  31  Colo. 
491,   73   P.   845. 

Kansas.  Impeachment  is  an  attack  upon  the  present 
credibility  of  a  witness;  and  an  impeaching  witness,  who 
testifies  that  he  knows  the  general  reputation  for  truth 
and  veracity  will  not  be  excluded  from  giving  testimony 
as  to  that  reputation  because  it  appears  that  such 
knowledge  has  been  obtained  and  is  based  solely  upon 
matters  transpiring  since  the  commencement  of  the  action. 
That  fact  affects  the  weight,  and  not  the  competency,  of 
the  impeaching  testimony. — Fisher  v.  Conway,  21  Kan.  18, 
3  Am.  R.  419. 


EXAMINATION  OF  WITNESSES.  911 

A  witness  on!y  knowing  the  reputation  of  i  ^.usecut- 
ing  witness  from  several  families  with  whom  she  had  lived 
is  not  qualified  to  testify  as  to  her  general  reputation. — 
State  v.  Evans,  90  Kan.  795,  136  P.  270. 
Texas.  The  testimony  of  an  impeaching  witness  is  in- 
admissible, where  it  appears  to  be  based  upon  his  individ- 
ual opinions  and  feelings,  and  not  upon  his  knowledge  of 
the  impeached  witness's  reputation  in  the  community  in 
which  he  lived. — Ayres  v.  Duprey,  27  Tex.  593,  86  Am. 
Dec.  657. 

A  witness  may  testify  to  the  good  reputation  of  another, 
although  he  may  never  have  heard  that  repute  questioned, 
but  in  order  to  testify  to  bad  reputation,  he  must  have 
heard  such  reputation  called  in  question. — Tyler  v.  State, 
46  Tex.  Cr.  R.  10,  79  S.  W.  558. 

When  the  credibility  of  a  witness  is  sought  to  be  im- 
peached, the  inquiry  must  be  restricted  to  his  general  rep- 
utation for  truth  in  the  community  where  he  lives  or  is 
best  known,  and  the  impeaching  witness  must  speak  from 
general  reputation  or  report,  and  not  from  his  own  private 
or  individual  opinion. — St.  Louis  Southwestern  Ry.  Co.  v. 
Garber,  51  Tex.  Civ.  App.  70,  111  S.  W.  227. 

Before  a  person  can  testify  to  the  general  reputation 
of  a  witness  he  must  answer  that  he  knows  his  reputation 
in  the  respect  inquired  about. — Harper  v.  State,  (Tex.  Cr. 
R.).   170  S.  W.   721. 

Washington.  A  witness  obtaining  knowledge  of  a  person 
bj  inquiring  of  forty  or  fifty  people  by  special  investiga- 
tion for  a  period  of  about  a  week  is  not  qualified  to  testify 
as  to  the  general  reputation  of  such  person. — State  v. 
Miller,  72  Wash.  174,  130  P.  356. 

WHETHER  IMPEACHED  WITNESS  WOULD  BE 
BELIEVED  UNDER  OATH. 
In  impeaching  the  credibility  of  a  witness,  the  question 
asked,  "From  what  you  know  of  his  truth  and  veracity, 
would  you  believe  him  under  oath?"  is  incompetent,  as 
calling  for  the  opinion  of  the  witnejw,  based  upon  his 
personal  knowledge,  and  not  upon  tto  general  reputation 


912  EXAMINATION  OP  WITNESSES. 

of  the  witness  sought  to  be  impeached. — People  v.  Web- 
ster, 89  Cal.  572,  26  P.  1080;  Benesch  v.  Waggner,  12  Colo. 
534,  21  P.  706. 

Arkansas.  After  an  impeaching  witness  has  testified  that 
he  knows  the  general  character  of  the  other  witness  for 
morality  in  the  community,  and  that  it  is  bad,  he  may  state 
that  from  his  general  character  witness  would  not  believe 
him  on  oath. — Majors  v.  State,  29  Ark.  112;  Hudspeth  v. 
State,  50  Ark.  534,  9  S.  W.  1;  Cline  v.  State,  51  Ark.  140, 
10  S.  W.  225. 

The  impeaching  witness  should  be  interrogated  as  to 
his  knowledge  of  the  general  character  and  reputation 
among  his  neighbors  for  truth  and  morality  of  the  witness 
sought  to  be  impeached,  and  from  that  knowledge,  if  suf- 
ficient to  support  an  opinion,  whether  or  not  he  would  be- 
lieve the  person  on  oath. — Cole  v.  State,  59  Ark.  50,  26 
S.  W.  377. 

California.  A  witness  who  is  called  to  impeach  another 
may  answer  that  he  would  not  believe  such  witness  under 
oath.  This  has  been  the  uniform  practice  in  this  state, 
and  no  injury  has  resulted  therefrom. — Stevens  v.  Irwin, 
12  Cal.  306;  People  v.  Tyler,  35  Cal.  553;  Wise  v.  Wake- 
field,  118  Cal.   107,   50  P.   310. 

Idaho.  The  question  as  to  whether  or  not  a  witness  can 
be  asked  whether  from  knowledge  of  the  reputation  of  an- 
other witness  he  would  believe  him  under  oath,  not  de- 
cided.—State  v.  Bouchard,  27  Ida.  500,  149  P.  464. 

Kansas.  It  is  competent  to  ask  an  impeaching  witness 
who  has  testified  that  the  general  reputation  of  another 
witness  for  truth  and  veracity  in  the  vicinity  in  which  he 
lives  is  bad,  whether  from  that  general  reputation  he 
would  give  him  full  credit  upon  his  oath  in  a  court  of 
justice.— State  v.  Johnson,  40  Kan.  266,  19  P.  749. 

Texas.  An  impeaching  witness  may  be  asked  if  the  gen- 
eral reputation  of  the  other  witness  is  such  as  to  entitle 
him  to  credit  on  oath.— Holbert  v.  State,  9  Tex.  App.  219, 
35  Am.  R.  738. 


EXAMINATION  OF  WITNESSES.  913 

Utah.  After  a  witness  is  shown  to  have  knowledge  of  the 
general  character  of  the  witness  sought  to  be  impeached, 
the  following  form  of  question  is  held  proper:  "Do  you 
know  what  the  general  reputation  of  John  Doe  is  for 
truth  and  veracity  in  the  neighborhood  where  he  resides?" 
If  the  question  is  answered  in  the  affirmative,  the  next 
question  will  be:  "What  is  that  reputation, — good  or 
bad?"  If  the  answer  is  "Bad,"  the  further  question  may 
be  put:  "From  that  reputation,  would  you  believe  him  on 
oath  in  a  matter  where  he  is  personally  interested?" — 
State  v.  Marks,  16  Utah  204,  51  P.  1089. 
Washington.  Where  testimony  had  been  introduced  to 
show  that  a  witness's  reputation  for  truth  and  veracity 
was  bad,  it  is  error  to  ask  whether  from  witness's  knowl- 
edge of  his  reputation  he  would  believe  him  under  oath. 
—State  v.  Miles,  15  Wash.  534,  46  P.  1047. 
Time  of  Reputation. 
It  is  a  question  for  the  court  to  determine  whether  or 
not  general  reputation  in  a  place  of  former  residence  is 
too  remote  in  point  of  time  to  be  allowed  in  evidence. — 
Snow  v.  Grace,  29  Ark.  131;  Cline  v.  State,  51  Ark.  140, 
10  S.  W.  225  (25  or  30  years  before  in  place  where  he  then 
lived);  People  v.  Cord,  157  Cal.  562,  108  P.  511. 
California.  Reputation  of  a  witness  in  a  county  from 
which  he  had  been  absent  for  twenty  years,  and  in  which 
he  had  done  no  business  since  his  departure,  is  inadmis- 
sible as  too  remote.— People  v.  Cord,  157  Cal.  562,  108  P. 
511. 

Nebraska.  General  reputation  for  truth  and  veracity  is 
not  limited  to  a  time  before  the  commission  of  the  alleged 
crime.— Long  v.  State,  23  Neb.  33,  36  X.  W.  310. 
Texas.  A  reputation  arising  after  the  transaction  which 
is  the  subject  of  the  action  cannot  be  shown. — Johnson  v. 
Brown,  51  Tex.  65. 

Utah.  Where  the  general  reputation  of  an  accused  who 
has  taken  the  stand  in  his  own  defense  is  attacked,  or  ins 
character  is  otherwise  placed  in  issue,  proof  thereof  should 
be  confined  to  a  dale  not  later  than  the  commission  of  the 
alleged  offense.— State  v.  Marks.  16  Utah  204,  51  P.  1089. 


914  EXAMINATION  OF  WITNESSES. 

Place   of   Reputation. 

Evidence  of  the  reputation  of  a  witness  for  truth  and 
veracity  at  a  place  of  former  residence  is  admissible,  if 
not  too  remote: 

Arkansas:  Lawson  v.  State,  32  Ark.  220  (two  years  be- 
fore, and  at  a  different  place). 

Kansas:  Coates  v.  Sulau,  46  Kan.  341,  26  P.  720  (at  a 
place  from  which  he  had  removed  only  a  few  months  be- 
fore). 

Nebraska:  Sun  Fire  Office  v.  Ayerst,  37  Neb.  184,  55  N. 
W.  635  (at  place  several  years  after  he  had  ceased  to  re- 
side there,  inadmissible) ;  Faulkner  v.  Gilbert,  61  Neb. 
602,  85  N.  W.  843  (same). 

Texas:  Thurmond  v.  State,  27  Tex.  App.  347,  11  S.  W.  451 
(at  a  place  from  which  he  had  removed  only  eighteen 
months);  Mynatt  v.  Hudson,  66  Tex.  66,  17  S.  W.  396  (in 
a  community  from  which  he  had  removed  four  years  be- 
fore, admissible);  Hampton  v.  State,  (Tex.  Cr.  R),  183  S. 
W.  887  (reputation  at  another  place  at  a  period  ten  or 
twelve  years  before,  inadmissible  as  too  remote,  especially 
as  he  had  lived  at  his  present  residence  five  or  six  years). 
Nebraska.  Evidence  of  the  general  reputation  of  a  wit- 
ness for  truth  and  veracity,  to  be  available  for  the  im- 
peachment of  such  witness,  must  have  reference  to  such 
reputation  at  his  present  or  recent  place  of  residence.  It 
should  not  relate  to  a  residence  which  had  ceased  two 
and  a  half  years  before  such  witness  testified. — Sun  Fire 
Office  v.  Ayerst,  37  Neb.  184,  55  N.  W.  635. 
Texas.  For  the  purpose  of  impeaching  testimony  of  a 
witness,  his  general  reputation  for  truth  and  veracity  in 
the  neighborhood  in  which  he  formerly  lived  is  proper, 
where  he  has  lived  only  a  short  time  in  the  vicinity  in 
which  he  is  now  living. — Coffelt  v.  State,  19  Tex.  App.  436; 
Lum  v.  State,  11  Tex.  App.  483. 

Washington.  The  reputation  of  a  witness  for  truth  and 
veracity  is  admissible,  though  acquired  in  a  city  five  or 
six  miles  distant  from  his  residence. — State  v.  Cushing, 
14  Wash.  527,  45  P.   145. 


EXAMINATION  OF  WITNESSES.  915 

Anticipatory  Impeachment. 
Idaho.    A  witness  whose  testimony  is  taken  by  deposition 
may  not  impeach  the  credibility  of  another  person  on  the 
anticipation  that  such  other  may  become  a  witness  in  the 
case.— Boeck  v.   Boeck,    (Ida.),   161   P.   576. 

Prerequisites  to  Admissibility. 
Testimony  as  to  the  good  reputation  of  a  witness  for 
truth  and  veracity  is  not  admissible  unless  the  character 
of  such  witness  for  truth  and  veracity  has  first  been  at- 
tacked, and  is  not  admissible  merely  because  the  testi- 
mony of  other  witnesses  conflicts  with  his,  or  his  testi- 
mony is  shaken  by  cross-examination. — Van  Horn  v.  Van 
Horn,  5  Cal.  App.  719,  91  P.  260;  Title  Ins.  &  Trust  Co.  v. 
Ingersoll,  153  Cal.  1,  94  P.  94;  Fernandez  v.  Watt,  26  Cal. 
App.  86,  146  P.  47;  First  Nat.  Bank  v.  Blakeman,  19  Okl. 
106,  91  P.  868;  Jones  v.  State,  9  Okl.  Cr.  646,  133  P.  249; 
Holmes  v.  State,  52  Tex.  Cr.  R.  352,  106  S.  W.  1160;  Pratt 
v.  State,  53  Tex.  Cr.  R.  281,  109  S.  W.  138;  Downing  v. 
State,  61  Tex.  Cr.  R.  519,  136  S.  W.  471;  Houston  Elec. 
Co.  v.  Jones,  (Tex.  Civ.  App.),  129  S.  W.  863;  Lacy  v. 
State,  63  Tex.  Cr.  R.  1S9,  140  S.  W.  461;  Allen  v.  State, 
64  Tex.  Cr.  R.  225,  141  S.  W.  983;  Wells  Fargo  &  Co.  v. 
Benjamin,  (Tex.  Civ.  App.),  165  S.  W.  120;  Solis  v.  State, 
(Tex.  Cr.  R.),  174  S.  W.  343;  Clay  v.  State,  (Tex.  Cr.  R.), 
180  S.  W.  277;  Ingram  v.  State,  (Tex.  Cr.  R.),  182  S.  \Y. 
290;  Bennett  v  Seattle  Elec.  Co.,  56  Wash.  407,  105  P.  825. 
Oklahoma.  The  state  cannot  attack  the  character  of  a 
defendant  unless  he  first  puts  that  in  issue  by  introducing 
evidence  of  his  good  character. — Kirk  v.  State,  11  Okl. 
Cr.  203,  145  P.  307;  Upton  v.  State,  (Okl.  Cr.),  160  P.  1134. 
Oregon.  To  warrant  evidence  of  the  good  character  of  a 
witness,  there  must  have  been  evidence  tending  to  im- 
peach the  character  of  that  witness,  and  evidence  of  con- 
tradictory statements  will  not  suffice. — State  v.  Louie 
Hing.  77  Or.  462,  151  P.  706. 

Texas.  Impeaching  testimony  is  not  Inadmissible  because 
the  attacked  witness  lives  in  a  distant  state,  and  the  op- 
posing party  had  not  been  notified  that  an  attack  would 


916  EXAMINATION  OF  WITNESSES. 

be  made  upon  his  credibility. — St.  Louis  Southwestern  Ry. 
Co.  v.  Garber,  51  Tex.  Civ.  App.  70,  111  S.  W.  227. 

Testimony  to  sustain  the  good  character  of  a  witness 
though  a  party,  for  truth  and  veracity,  is  not  admissible 
unless  an  attempt  has  been  made  by  the  opposite  side 
to  impeach  such  character. — Missouri,  K.  &  T.  Ry.  v. 
Williams,  (Tex.  Civ.  App.),  133  S.  W.  499. 

Rebuttal  of  Impeaching  Testimony. 
Arkansas.  Where  a  witness  is  introduced  to  sustain  the 
character  of  the  witness  sought  to  be  impeached,  interro- 
gatories similar  to  those  proper  to  be  propounded  to  the 
impeaching  witness  should  be  propounded  to  him. — Cole 
v.  State,  59  Ark.  50,  26  S.  W.  377. 

Kansas.  The  law  presumes  that  witnesses  are  truthful, 
and  without  any  evidence  on  that  point  they  are  entitled 
to  credit;  but  if  they  have  established  a  reputation  in  the 
vicinity  where  they  reside  for  untruthfulness,  this  fact 
may  be  shown  in  evidence,  and  the  witness  is  impeached. 
But  to  defeat  this  attempted  impeachment  it  is  only  nec- 
essary to  show  that  the  impeaching  testimony  is  not  true, 
and  that  the  witness  has  not  a  bad  reputation  for  truth 
and  veracity. — Stevens  v.  Blake,  5  Kan.  App.  124,  48  P.  888. 
Oregon.  In  a  prosecution  for  rape,  where  the  state,  in 
rebuttal  of  evidence  of  defendant  showing  that  the  repu- 
tation of  prosecutrix  for  chastity  and  virtue  was  bad,  in- 
troduced a  witness  who  testified  that  he  was  acquainted 
with  her  reputation  in  these  respects,  and  that  it  was 
good,  so  far  as  he  had  heard,  he  may  be  asked  by  the  de- 
fendant if  he  had  ever  heard  of  her  being  discharged 
from  several  named  places  of  employment  on  account  of 
her  immoral  character. — State  v.  Ogden,  39  Or.  195,  65 
P.  449. 

Effect  of  Impeachment. 
Oregon.  A  court  is  not  bound  to  disregard  the  testimony 
of  an  impeached  witness,  but  it  should  be  compared  with 
the  other  evidence  and  facts  proved  in  the  case,  and  giver 
such  weight  as  it  is  entitled  to,  under  the  circumstances.. 
— Wimer  v.  Smith,  22  Or.  469,  30  P.  416. 


«.      EXAMINATION  OF  WITNESSES.  917 

Washington.  The  testimony  of  a  witness  who  has  been 
impeached  ought  not  to  be  wholly  disregarded  by  the  jury, 
if  the  jury  feel  justified,  from  the  deportment  of  the  wit- 
ness on  the  stand  or  the  probability  of  his  testimony,  in 
believing  any  part  of  it,  even  if  he  receives  no  other  cor- 
roboration.—State  v.  Gaul,   88  Wash.   295,   152  P.   1029. 

Supporting  Impeached  Witness. 
Texas.  The  testimony  of  an  impeached  witness  may  be 
supported  by  evidence  of  other  witnesses  to  show  that  he 
made  statements  similar  to  his  present  testimony  prior 
to  the  trial  and  shortly  after  the  transaction  testified  to. 
—Lewis  v.  State,  64  Tex.  Cr.  R.  490,  142  S.  W.  875. 

Article  134. 
offenses  against  women. 

When  a  man  is  prosecuted  for  rape  or  an  at- 
tempt to  ravish,  it  may  be  shown  that  the  woman 
against  whom  the  offense  was  committed  was  of 
a  generally  immoral  character,  although  she  is  not 
cross-examined  on  the  subject,  (a)  The  woman 
may  in  such  a  case  be  asked  whether  she  has  had 
connection  with  other  men,  but  her  answer  can- 
not be  contradicted,  (b)  She  may  also  be  asked 
whether  she  had  had  connection  on  other  occa- 
sions with  the  prisoner,  and  if  she  denies  it  she 
[probably]  may  be  contradicted,  (c) 

CHARACTER    OF    PROSECUTRIX. 
The  general  reputation  of  prosecutrix  in  rape  cases  for 
unchastity  is  admissible  to  show  the   probability  of  con- 
sent.—State   v.    Brown.    55    Kan.    766,    42    I'.    863;    State   v. 


ci  '    R.    v.    Clark.',    L'    Star.    241. 
(t.)    K.   v.    Holmes,   L.   R.   1   C.   C.   R.   334. 
(c)    it.    v.    Martin,    6    C.   &    i '.    562,    and    remarks    In    R.    V. 
Holmes,  p.  837,  per  Kelly,  C.  B. 


918  EXAMINATION  OF  WITNESSES. 

Ogden,  39  Or.  195,  65  P.  449;  Jacobs  v.  State,  (Tex.  Cr.  R.), 
146  S.  W.  558. 

Arkansas.  The  prosecutrix  may  be  asked  on  cross-exam- 
ination as  to  whether  she  had  ever  had  intercourse  with 
other  men;  to  affect  her  credibility. — King  v.  State,  106 
Ark.  160,  152  S.  W.  990;  Garrard  v.  State,  113  Ark.  598, 
167   S.  W.  485. 

California.  In  a  prosecution  for  rape,  it  is  not  permissible 
for  the  prosecutrix  to  testify  upon  her  examination  in 
chief  that  prior  to  the  alleged  offense  she  had  never  had 
sexual  intercourse  with  anyone.  The  previous  chaste 
character  of  the  female  should  be  inferred  by  the  jury  in 
the  absence  of  evidence  to  the  contrary,  and  can  only  be 
proved  by  way  of  rebuttal  of  attacking  evidence. — People 
v.  O'Brien,  130  Cal.  1,  62  P.  297. 

Oklahoma.  The  "character"  of  the  female,  mentioned  in 
the  statute,  is  that  condition  actually  existing,  contradis- 
tinguished from  a  character  by  reputation. — Marshall  v. 
Territory,  2  Okl.  Cr.  136,  101  P.  139. 

Washington.  Upon  a  prosecution  for  rape  of  a  female  be- 
tween the  ages  of  15  and  18  years,  evidence  of  general 
reputation  for  unchastity  is  not  a  defense,  but  goes  to  the 
credibility  of  the  prosecuting  witness. — State  v.  Workman, 
66  Wash.   292,   119  P.   751. 

Specific  Acts. 

See  article  133. 

General  reputation  for  chastity  is  admissible,  but  not 
particular  instances,  to  show  consent. — State  v.  Brown,  55 
Kan.  766,  42  P.  363;  State  v.  Campbell,  20  Nev.  122,  17  P. 
620;   Pefferling  v.  State,  40  Tex.  486. 

California.  In  a  prosecution  for  rape,  when  the  com- 
plaining party  is  the  only  witness,  particular  acts  of  lewd- 
ness with  other  men  on  the  part  of  the  female,  were  ad- 
missible as  tending  to  disprove  the  allegation  of  force 
and  total  absence  of  assent  on  her  part. — People  v.  Ben- 
son, 6  Cal.  221,  65  Am.  Dec.  506. 

As  a  general  rule,  both  the  general  reputation  of  the 
prosecutrix  for  chastity  and  particular  acts  of  unchastity 


EXAMINATION  OF  WITNESSES.  919 

may  be  proven  in  a  criminal  action  for  rape. — People  v. 
Johnson,  106  Cal.  289,  39  P.  622. 

Upon  the  trial  of  a  person  for  rape,  evidence  is  permis- 
sible to  show  that  the  prosecutrix,  previous  to  the  time 
of  the  alleged  offense,  had  consented  to  intercourse  with 
other  men.— People  v.  Shea,  125  Cal.  151,  57  P.  885. 
Kansas.  In  a  prosecution  for  rape,  evidence  which  tended 
to  show  that  the  female  had  been  an  unchaste  woman  was 
competent;  but  specific  acts  of  unchastity  were  incom- 
petent to  prove  probable  consent  to  sexual  intercourse  with 
the  defendant.— State  v.  Bryan,  34  Kan.  63,  8  P.  260;  State 
v.  Brown,  55  Kan.  766,  42  P.  363. 

Upon  a  prosecution  for  statutory  rape,  defendant  should 
be  permitted  to  cross-examine  plaintiff  fully  in  regard  to 
her  associations  with  other  men  at  or  about  the  time  of 
her  conception. — State  v.  Gereke,  74  Kan.  196,  87  P.  759; 
overruling  86  P.  160. 

Nevada.  On  a  trial  for  rape,  the  court  properly  excluded 
evidence  as  to  particular  acts  and  instances  of  unchastity 
on  the  part  of  prosecutrix  not  connected  with  the  case  on 
trial.— State  v.  Campbell,  20  Nev.  122,  17  P.  620. 

New  Mexico.  On  a  trial  for  rape,  evidence  of  particular 
instances  of  unchastity  on  the  part  of  the  female  is  not 
permissible,  her  character  being  subject  to  impeachment 
only  by  general  evidence  of  her  reputation  therein. — Ter- 
ritory v.  Pino.  9  N.  M.  598,  58  P.  393. 

Oklahoma.  The  character  of  the  female  that  is  put  in 
issue  in  an  action  for  rape,  is  not  that  character  which 
she  holds  by  reason  of  general  reputation.  The  female's 
actual  chaste  and  virtuous  state  or  condition  is  her  shield 
and  protection;  and  this  should  be  so,  because  she  may 
be  falsely  accused,  as  many  men  and  women  are  in  this 
day.  That  a  false  accusation  should  license  the  libertine 
to  take  advantage  of  a  chaste  and  virtuous  female  would 
be  revolting.  Such  a  law  would  fall  short  of  being  right- 
eous and  just,  and  put  womankind  at  the  mercy  of  scandal 
mongers  v.nd  character  assassins. — Marshall  v.  Territory, 
2   Okl.  Cr.   136,    101   P.   139. 


920  EXAMINATION  OP  WITNESSES. 

When  a  defendant  is  on  trial  for  having  sexual  inter- 
course with  a  female  under  18  years  of  age,  not  the  wife 
of  defendant,  and  of  previous  chaste  and  virtuous  char- 
acter, the  defendant  cannot  attack  her  character  for  virtue 
and  chastity  by  proof  of  her  general  reputation,  but  he 
is  permitted  to  prove,  if  he  can,  any  specific  act  indicat- 
ing the  want  of  chastity  upon  her  part.  The  rule  usually, 
in  such  a  case,  is  not  the  reputation  of  the  female,  but 
whether,  as  a  matter  of  fact  she  was  chaste  and  virtuous 
prior  to  such  intercourse. — Hart  v.  Territory,  5  Okl.  Cr. 
162,  114  P.  261. 

Oregon.  In  a  prosecution  for  rape,  evidence  of  specific 
acts  of  unchastity  on  the  part  of  the  prosecutrix  with 
others  than  the  defendant  is  inadmissible,  and  she  cannot 
be  asked  whether  previous  to  the  act  in  question  she  had 
ever  had  intercourse  with  anybody  (other  than  defendant). 
—State  v.  Ogden,  39   Or.  195,  65  P.  449. 

If  the  prosecutrix  has  attained  the  legal  age,  her  char- 
acter may  be  challenged  by  inquiring  of  her  on  cross-ex- 
amination whether  she  has  had  illicit  relations  with  the 
accused  at  any  time  prior  to  the  act  with  the  commission 
of  which  he  is  charged;  evidence  of  such  previous  connec- 
tion being  admissible  to  give  rise  to  a  presumption  that 
she  consented  to  the  act  in  question. — State  v.  Ogden,  39 
Or.  195,  65  P.  449. 

Texas.  Evidence  of  other  intercourse  between  the  same 
parties  is  admissible. — Abernathy  v.  State,  (Tex.  Cr.  R.), 
174    S.   W.   339. 

Washington.  The  obvious  purpose  of  a  statute  to  pro- 
tect females  over  15  years  of  age  and  under  18  years  of 
age  and  containing  the  words  "previously  chaste  char- 
acter," means  actual  physical  condition  as  distinguished 
from  a  chaste  state  of  mind  as  shown  by  general  conduct; 
a  lack  of  chastity  in  the  female,  cannot  be  proved  except 
by  specific  acts  of  unchastity. — State  v.  Workman,  66 
Wash.  292,  119  P.  751. 

Female    Under  Age. 

Evidence  showing  that  a  female  under  the  age  of  con- 
sent has  had  prior  sexual  intercourse  with  other  men  is 


; 


EXAMINATION  OF  WITNESSES.  921 

inadmissible  as  bearing  upon  her  credibility,  as  well  as 
for  every  other  purpose. — People  v.  Johnson,  106  Cal.  289, 
39  P.  622;  People  v.  Liggett,  18  Cal.  App.  367,  123  P.  225; 
Walker  v.  State,  8  Okl.  Cr.  125,  126  P.  829;  Allen  v.  State, 
10  Okl.  Cr.  55,  134  P.  91;  Kearse  v.  State,  (Tex.  Cr.  R.), 
151  S.  W.  827;  State  v.  Gay,  82  Wash.  423,  144  P.  711. 
Arizona.  Upon  a  prosecution  for  rape  of  a  female  13 
years  of  age,  it  was  not  error  to  refuse  the  admission  of 
evidence  that  the  house  in  which  the  child  lived  was  a 
house  of  bad  repute  for  chastity. — Territory  v.  Richmond, 
2  Ariz.  68,  10  P.  368. 

California.  In  a  prosecution  for  rape,  where  the  prosecu- 
trix is  under  the  age  of  consent,  evidence  as  to  her  repu- 
tation for  chastity  is  not  admissible. — People  v.  Wilmot, 
139  Cal.  103,  72  P.  838;  People  v.  Johnson,  106  Cal.  289, 
39  P.  622;  People  v.  Currie,  14  Cal.  App.  67,  111  P.  108. 
Idaho.  On  a  trial  for  rape,  where  the  female  was  under 
the  age  of  consent,  evidence  was  inadmissible  to  show 
that  she  ever  had  sexual  intercourse  with  anyone  prior 
to  the  time  she  submitted  to  that  relation  with  defendant. 
—State  v.  Hammock,  18  Ida.  424,  110  P.  169. 
Oklahoma.  Evidence  tending  to  show  a  lack  of  chastity 
on  the  part  of  the  prosecutrix  is  only  admissible  to  raise 
the  presumption  of  consent,  and  in  the  case  of  statutory 
rape,  that  issue  is  not  present. — Walker  v.  State,  8  Okl. 
Cr.  125.  126  P.  829. 

Utah.  Where  a  crime  charged  is  sexual  intercourse  with 
prosecutrix  under  the  age  of  consent,  the  intercourse  con- 
stituted the  offense  whether  she  consented  or  not,  and  her 
good  or  bad  character  for  chastity  as  affecting  the  crime 
charged,  was  not  in  issue,  but  her  general  reputation  for 
truth  and  veracity  was. — State  v.  Hilberg,  22  Utah  27,  61 
P.  215;    State  v.  Williamson,  22  Utah  248,  62  P.  1022. 


922  EXAMINATION  OF  WITNESSES. 

Article  135. 

what  matters  may  be  proved  in  reference  to  declarations 
relevant  under  articles  25-34. 

Whenever  any  declaration  or  statement  made 
by  a  deceased  person  relevant  or  deemed  to  be 
relevant  under  articles  25-33,  both  inclusive,  or 
any  deposition  is  proved,  all  matters  may  be 
proved  in  order  to  contradict  it,  or  in  order  to 
impeach  or  confirm  the  credit  of  the  person  by 
whom  it  was  made  which  might  have  been  proved 
if  that  person  had  been  called  as  a  witness,  and 
had  denied  upon  cross-examination  the  truth  of 
the  matter  suggested,  (a) 


Oregon.  For  the  purpose  of  discrediting  dying  declara- 
tions, the  fact  that  deceased  was  a  disbeliever  in  a  future 
state  of  rewards  and  punishments  is  admissible. — Goodall 
v.  State,  1  Or.  333. 

Washington.  Circumstances  surrounding  the  making  of 
a  dying  declaration  are  admissible  to  affect  its  weight 
and  credibility.— State  v.  Crawford,  31  Wash.  260,  71  P. 
1030. 


(a)  R.  v.  Drummond,  1  Lea.  338;  R.  v.  Pike,  3  C.  &  P.  598. 
In  these  cases  dying  declarations  were  excluded,  because  the 
persons  by  whom  they  were  made  would  have  been  incom- 
petent as  witnesses,  but  the  principle  would  obviously  apply 
to  all  the  cases  in  question.  [Otterson  v.  Hofford,  36  N.  J. 
1*9;  Lossee  v.  Lossee,  2  Hill  (N.  Y.),  609;  1  Greenl.  Ev., 
§    163.] 


EXAMINATION  OF  WITNESSES.  923 

Article  136. 
refreshing  memory. 

A  witness  may,  while  under  examination,  re- 
fresh his  memory  by  referring  to  any  writing 
made  by  himself  at  the  time  of  the  transaction 
concerning  which  he  is  questioned,  or  so  soon 
afterwards  that  the  judge  considers  it  likely  that 
the  transaction  was  at  that  time  fresh  in  his 
memory. 

The  witness  may  also  refer  to  any  such  writing 
made  by  any  other  person,  and  read  by  the  wit- 
ness within  the  time  aforesaid,  if  when  he  read 
it  he  knew  it  to  be  correct,  (a) 

An  expert  may  refresh  his  memory  by  refer- 
ence to  professional  treatises,  (b) 

REFRESHING    MEMORY. 
General   Rule. 

It  is  not  error  to  permit  a  witness  to  refresh  his  mem- 
ory of  dates,  weights  and  prices,  made  in  his  own  hand- 
writing at  or  about  the  time  of  the  particular  transactions. 
— Rohrig  v.  Pearson,  15  Colo.  127,  24  P.  1083;  Sanders  v. 
Wakefield,  41  Kan.  11,  20  P.  518;  Atchison.  T.  &  St.  F. 
Ry.  Co.  v.  Lawler,  40  Neb.  356,  58  N.  W.  968. 

If  it  appears  from  an  examination  of  all  the  evidence 
that  a  witness  has  an  independent  recollection  in  the  main 
of  a  transaction,  he  may  use  a  memorandum  made  by  an- 
other, to  refresh  his  memory  as  to  the  details  thereof. — 
Bowden  v.  Spellman,  59  Ark.  251,  27  S.  W.  602;  Western 
Union  Tel.  Co.  v.  Collins,  7  Kan.  App.  97,  53  P.  74;  La- 
boree  v.  Klosterman.  33  Neb.  150,  49  N.  W.  1102;  State 
v.  Magers,  35  Or.  520,  57  P.  197;  Brown  v.  Smith,  24  S.  D. 
231,  123  N.  W.  689. 


(a)  2  Ph.  Ev.  480,  &c;  T.  E.  ss.  1264-1270;  R.  N.  P.  194-195. 

(b)  Sussex  Peerage  Case,    11   C.   &  F.   114-117. 


924  EXAMINATION  OF  WITNESSES. 

Arkansas.  Witnesses  should  be  permitted  to  testify  as  to 
facts  disclosed  by  memoranda  which  appeared  upon  en- 
velopes which  each  held  in  his  hand,  which  memoranda 
each  stated  were  made  by  him  at  the  time  of  the  trans- 
actions to  which  they  referred,  and  truly  representing  the 
transaction,  each  stating  that  he  relied  on  the  memoranda 
for  his  statements,  and  not  upon  present  recollection. — 
Woodruff  v.  State,  61  Ark.  157,  32  S.  W.  102. 
California.  A  bookkeeper,  as  a  witness,  has  the  right  to 
refer  to  the  books  kept  by  him,  in  order  to  refresh  his 
memory  as  to  facts  contained  therein. — Treadwell  v. 
Wells,  4  Cal.  260. 

A  witness  called  by  the  prosecution  in  a  criminal  case 
to  prove  statements  made  by  the  defendant,  may,  while  on 
the  stand,  refresh  his  memory  by  a  reference  to  a  writ- 
ten memorandum  made  by  him  at  the  time  or  soon  after. 
—People  v.  Cotta,   49   Cal.   166. 

A  witness  cannot  refresh  his  memory  from  an  affidavit 
subscribed  and  sworn  to  by  him  ex  parte,  where  there  is 
no  showing  that  he  had  written  the  affidavit,  or  that  it 
had  been  made  under  his  direction,  at  the  time  the  facts 
occurred,  or  immediately  thereafter,  or  at  any  other  time 
when  the  facts  were  fresh  in  his  memory,  and  that  he 
knew  that  the  same  were  correctly  stated  in  the  writing, 
—Morris   v.   Lachman,   68   Cal.    109,   8   P.   799. 

A  physician  who  attended  the  mother  at  the  birth  of  a 
child  may  testify  as  to  the  date  of  its  birth  after  refresh- 
ing his  memory  by  an  entry  in  his  cash  book  of  that  date. 
—People  v.  Vann,   129  Cal.  118,  61  P.  776. 

Letter  press  copies  of  an  original  report  of  daily  sales 
of  tickets  made  by  a  railroad  agent  may  be  used  by  him  to 
refresh  his  memory  as  to  the  sale  of  a  certain  ticket. — ■ 
People  v.  Lowrie,  4  Cal.  App.  137,  87  P.  253. 
Colorado.  Though  there  is  sufficient  foundation  laid  for 
the  introduction  of  books  of  account  themselves,  yet  they 
may,  without  being  introduced,  be  used  to  refresh  the  mem- 
ory of  a  witness  who  recollects  the  greater  part  of  the 
transactions  without  them. — Moynahan  v.  Perkins,  36  Colo. 
481,  85  P.  1132. 


EXAMINATION  OF  WITNESSES.  925 

Kansas.  A  witness  may  refresh  his  recollection  by  ref- 
erence to  any  memoranda  relating  to  the  subject-matter 
to  which  his  attention  is  directed  on  the  stand,  whether 
the  memoranda  is  in  such  form  as  to  be  competent  as 
independent  evidence  or  not,  and  then  testify,  providing  he 
then  has  any  independent  recollection  of  such  subject- 
matter.— McNeely  v.  Duff,  50  Kan.  488,  31  P.  1061. 
Nebraska.  A  witness  who  had  taken  shorthand  notes  of 
certain  testimony  at  a  former  trial  is  competent  to  testify 
to  the  facts  in  evidence  from  her  own  recollection,  while 
refreshing  her  memory  from  her  notes,  if  she  states  that 
she  remembers  the  testimony  that  the  witness  gave  on 
the  former  trial. — Small  v.  Poffenbarger,  32  Neb.  234,  49 
N.  W.  337. 

A  memorandum  in  the  form  of  an  inventory  of  goods 
may  be  used  by  a  witness  to  refresh  his  memory,  in  order 
to  enable  him  to  testify  as  to  the  particular  items  of  a 
stock  of  goods  and  their  value,  which  he  claims  has  been 
converted.— Gross  v.  Scheel,  67  Neb.  223,  93  N.  W.  418. 

Nevada.  A  witness  may  read  from  a  writing  in  order  to 
refresh  his  memory  as  to  its  contents;  the  writing  itself 
not  being  offered  in  evidence,  but  the  recollection  of  the 
witness. — Pinschower  v.  Hanks,  18  Nev.  99,  1  P.  454. 

New  Mexico.  A  written  memorandum  may  not  be  used 
to  refresh  the  memory  of  a  witness  unless  its  correctness 
when  made  is  first  established.— Territory  v.  Harwood,  15 
N.  M.  424,  110  P.  556. 

North  Dakota.  There  can  be  no  refreshing  of  the  recol- 
lection concerning  matters  of  which  the  witness  never  had 
any  actual  personal  knowledge.  (Statements  in  books  of 
account  which  the  witness  was  not  concerned  directly  in 
making). — Dr.  R.  D.  Eaton  Chemical  Co.  v.  Doherty,  31 
N.  D.  175,  153  N.  W.  966. 

Oregon.  Under  the  common  law  rule  there  are  three 
classes  of  cases  in  which  a  witness  is  allowed  to  refresh 
his  memory  by  means  of  written  memoranda:  (1)  Where 
the  writing  serves  only  to  revive  or  assist  the  memory, 
and  to  bring  to  mind  a  recollection  of  the  facts;   (2)  where 


926  EXAMINATION  OF  WITNESSES. 

the  witness  may  recall  having  seen  the  writing  before, 
and,  though  he  has  no  independent  recollection  of  the  facts 
mentioned  in  it,  yet  remembers  that  at  the  time  he  saw 
it  he  knew  the  statements  therein  contained  to  be  correct; 
and  (3)  where  it  brings  neither  any  recollection  of  the 
facts  mentioned  in  it,  nor  any  recollection  of  the  writing 
itself,  but  which  enables  him  to  swear  to  a  particular  fact 
from  the  conviction  of  his  mind  on  seeing  a  writing  which 
he  knows  to  be  genuine. — State  v.  Magers,  36  Or.  38,  58 
P.  892. 

Texas.  It  was  permissible  for  a  witness  to  refresh  his 
memory  from  a  book  of  accounts  between  himself  and  a 
former  partner,  the  entries  having  been  made  by  him,  al- 
though such  book  had  not  been  produced  by  the  witness 
in  response  to  a  subpoena  duces  tecum,  the  book  of  ac- 
counts having  nothing  to  do  with  the  matters  such  sub- 
poena concerned  itself  with. —  Faver  v.  Bowers,  (Tex.  Civ. 
App.),  33  S.  W.  131. 

Plaintiff  may  refresh  his  memory  as  to  the  weights  of 
certain  stock  by  consulting  an  account  sales  made  by  the 
consignees  thereof,  where  he  testifies  that  it  corresponds 
with  the  weights  as  he  heard  them  called  off. — St.  Louis, 
I.  M.  &  S.  Ry.  Co.  v.  Wills,  (Tex.  Civ.  App.),  102  S.  W.  733. 

It  is  always  permissible  to  permit  the  witness  to  refresh 
his  memory.— Taylor  v.  State,  (Tex.  Cr.  R.),  179  S.  W.  113. 

Washington.  Where  a  question  calls  for  the  contents  of 
an  insurance  policy,  as  between  a  witness's  memory  of 
what  it  contained  and  the  memoranda  of  its  contents  made 
by  him,  his  memory  is  best  evidence,  even  though  he  is 
compelled  to  use  his  memoranda  to  refresh  his  memory. 
—State  v.  Mann,  39  Wash.   144,  81  P.  561. 

NECESSITY  OF   FAILURE   OF    RECOLLECTION. 

Kansas.  A  witness  may  be  permitted  to  refresh  his  memory 
from  a  writing  or  memorandum  made  by  himself 
shortly  after  the  occurrence  of  the  fact  to  which  it  re- 
lates; but  it  is  only  when  the  memory  needs  assistance 
that  resort  may  be  had  to  these  aids,  and,  if  the  witness 


! 


EXAMINATION  OF  WITNESSES.  927 

has  an  independent  recollection  of  the  facts  inquired 
about,  there  is  no  necessity  nor  propriety  in  his  inspect- 
ing any  writing  or  memorandum. — State  v.  Baldwin,  36 
Kan.  1,  12  P.  318. 

South  Dakota.  A  writing  cannot  be  used  to  refresh  the 
memory  of  a  witness  who  has  not  stated  that  he  did  hot 
remember  the  facts  desired  to  be  ascertained. — State  v. 
Burns,  25  S.  D.  364,  126  N.  W.  572. 

Independent  Recollection  of  Facts. 
Arkansas.  Witnesses  were  properly  permitted  to  testify 
as  to  facts  disclosed  by  memoranda  which  appeared  upon 
envelopes  which  each  held  in  his  hands,  which  memoranda 
each  stated  were  made  by  him  at  the  time  of  the  trans- 
actions to  which  they  referred,  and  truly  represented  the 
transaction;  each  stating  that  he  relied  on  the  memoranda 
for  his  statements,  and  not  upon  present  recollection. — 
Woodruff  v.  State,  61  Ark.  157,  32  S.  W.  102. 
Nebraska.  Where  a  witness  testified  that  a  memorandum 
of  a  statement  was  made  by  him  at  the  time,  and  is  cor- 
rect, he  may  testify  with  the  aid  of  the  memorandum, 
though  he  has  no  independent  recollection  of  the  facts. — 
Welch  v.  Adams,  87  Neb.  681,  127  N.  W.  1064. 
Texas.  Writings  may  be  used  to  assist  memory,  where 
the  witness  recollects  having  seen  the  writing  before,  and 
although  he  has  no  independent  recollection  of  the  facts 
mentioned  in  it,  yet  he  remembers  that,  at  the  time  he 
saw  it,  he  knew  the  contents  to  be  correct.  (Justice  of 
the  peace  testifying  as  to  certain  facts  from  docket  en- 
tries made  by  him  at  the  time  of  a  transaction  which  he 
did  not  personally  recollect.) — Kimbrough  v.  State,  28 
Tex.  App.  367,   13  S.  W.  218. 

Washington.  A  hotel  proprietor  may  testify  to  the  pres- 
ence of  defendant  as  a  guest  on  certain  dates  by  refresh- 
ing his  memory  by  means  of  the  hotel  register,  the  name 
of  defendant  appearing  thereon  written  by  the  hotel  keep- 
er, where  he  testifies  that  he  does  not  have  a  personal  rec- 
ollection of  defendant's  being  there  on  that  date,  but 
that  he  would  not  have  written  down  defendant's  name  if 


928  EXAMINATION  OF  WITNESSES. 

he  had  not  been  there  at  the  times  stated. — State  v.  Dou- 
ette,  31  Wash.  6,  71  P.  556. 

Requisites  of  Memoranda. 
California.  It  is  not  error  to  refuse  to  allow  a  witness  to 
refresh  his  memory  from  an  ex  parte  affidavit  where  it 
was  not  shown  that  it  had  not  been  made  under  his  di- 
rection at  the  time  the  facts  deposed  to  occurred,  or  im- 
mediately thereafter,  or  when  the  facts  were  fresh  in  his 
memory,  or  that  he  knew  the  same  were  correctly  stated. 
—Morris  v.  Lachman,  68  Cal.  109,  8  P.  799. 
New  Mexico.  Any  writing  or  memorandum  made  by  the 
witness  or  under  his  direction  at  the  time  of  the  transac- 
tion, or  soon  afterwards,  when  read  and  examined  by  him, 
may  be  referred  to  in  order  to  refresh  his  memory. — Price 
v.  Garland,   3  N.   M.   505,   6   P.  472. 

Account  books  may  be  used  to  refresh  the  memory  only 
of  the  one  who  made  them  or  had  personal  knowledge  of 
their  correctness. — Price  v.  Garland,  3  N.  M.  505,  6  P.  472. 

Made  Under  Direction  of  Witness. 
California.  A  witness  may  refresh  his  memory  from  mem- 
oranda although  such  memoranda  was  not  made  at  the 
time  the  occurrences  took  place  nor  by  witness  himself, 
if  it  was  made  under  his  direction  at  any  time  while  the 
facts  were  fresh  in  his  memory. — Paige  v.  Carter,  64  Cal. 
489,  2  P.  260. 

It  is  proper  to  permit  a  witness  to  refresh  his  memory 
as  to  deposits  made  to  his  account  and  drafts  drawn 
against  it  from  a  bank  pass  book,  where  it  is  shown  that 
such  entries  were  admittedly  made  in  witness's  presence 
and  under  his  direction  and  he  knew  at  the  time  that 
they  were  correct. — McGowan  v.  McDonald,  111  Cal.  57, 
43  P.  418,  52  A.  S.  R.  149. 

Oregon.  The  cashier  of  a  bank  may  refresh  his  memory 
by  a  memorandum  of  a  bank  account  copied  from  books 
kept  under  his  direction  which  he  knew  to  be  correct,  the 
memorandum  being  carefully  compared  with  the  original, 
and  after  using  it  he  was  able  to  testify  from  memory  of 
the  transaction. — Haines  v.  Cadwell,  40  Or.  229,  66  P.  910. 


EXAMINATION  OF  WITNESSES.  929 

Made  By  Others. 
Arkansas.  An  agent  of  plaintiff  may  refresh  his  memory 
as  to  an  account  owed  by  defendant,  by  use  of  a  balance 
sheet  which  had  been  compared  by  him  and  defendant  with 
defendant's  books,  and  found  to  be  correct,  though  the  bal- 
ance sheet  was  not  made  by  the  witness. — Milwaukee 
Harvester  Co.  v.  Tymich.   OS  Ark.  225.   58   S.  W.  252. 

The  question  being  whether  a  certain  telegram  was  sent, 
testimony  of  an  operator  that  he  did  not  send  the  mes- 
sage himself,  but  that  he  put  certain  service  marks  on  it 
indicating  the  sending  by  a  receiving  operator,  and  that  he 
must  have  known  of  the  sending  of  the  message  or  he 
would  not  have  put  the  marks  on  it,  renders  the  telegram 
with  the  marks  thereon  admissible  as  evidence  of  the  past 
recollection  of  the  witness.— St.  Louis  S.  W.  Ry.  Co.  v. 
White  Sewing  Mach.  Co..   78  Ark.   1.  93  S.  W.  58. 

Payrolls  on  which  a  witness  based  his  testimony  as  to 
the  date  of  the  cutting  of  certain  timber,  excluded. — 
Moore  &  McFerrin  v.  Luehrmann  Hardwood  Lbr.  Co.,  82 
Ark.   4S5.    L02   S.    W.   385. 

The  president  of  a  company  cannot  testily  as  to  the 
date  of  receipt  of  a  gin  shaft  rod.  by  stating  that  the  com- 
pany records  showed  their  receipt  at  a  certain  date,  where 
he  did  not  keep  such  records  nor  supervise  their  keeping. 
— Kansas  City  Southern  Ry.  Co.  v.  Morrison,  l":i  Ark.  522. 
146   S.   W 

Nebraska.  A  memorandum  of  a  transaction,  made  by  an- 
other than  the  witness  who  uses  the  same  to  refresh  hits 
memory  and  revive  his  personal  recollection  of  the  trans- 
action, is  admissible  without  the  corroborating  testimony 
of  the  person  who  made  it.  if  he  is  beyond  the  reach  of 
the  process  of  the  court,  his  whereabouts  being  unknown, 
upon  proof  of  his  handwriting. — Labaree  v.  Klosterman, 
33  Neb.   150,   49   X     W.    1102. 

A  witness  may  refresh  his  memory  from  a  memorandum 
made  at  or  near  the  time  the  transaction  mentioned  in  it 
took  place,  even  though  the  memorandum  was  not  made 
by  himself,  If,  aftei  it.  he  has  a  personal  recollec 


930  EXAMINATION  OP  WITNESSES. 

tion  of  the  facts  therein  stated,  and  can  testify  as  to  them 
of  his  own  recollection. — Labaree  v.  Klosterman,  33  Neb. 
150,  49  N.  W.  1102. 

Oregon.  An  officer  before  whom  a  statement  was  made 
by  accused  after  his  arrest  may  refresh  his  memory  from 
the  transcript  of  the  notes  of  the  stenographer  who  took 
down  the  statement  at  the  time  under  the  direction  of  the 
officer,  though  he  could  not  read  the  notes. — State  v. 
Magers,  36  Or.  38.  58  P.  892. 

The  statute  has  changed  that  part  of  the  common-law 
rule  permitting  a  witness  to  refresh  his  memory  from  a 
memorandum  or  record  made  by  another,  if  read  by  or  to 
him  when  the  matter  was  fresh  in  his  memory,  so  that 
he  is  enabled  to  depose  that  the  writing  correctly  repre- 
sented his  recollection  at  that  time;  so  that  now  a  mem- 
orandum must  have  been  made  by  the  witness  himself 
or  under  his  direction. — Manchester  Assur.  Co.  v.  Oregon 
R.  Co.,  46   Or.  162,  79  P.   60. 

Texas.  A  consignee's  entry  as  to  condition  of  cotton  on 
receipt,  the  damage  done  to  it  and  various  details,  may 
be  used  to  refresh  the  memory  of  a  witness  who  knew 
generally  of  the  facts,  although  the  clerk  who  made  the 
entries  was  not  called. — International  &  G.  N.  R.  Co.  v. 
Blanton,  63  Tex.  109. 

Made  Up  From  Various  Documents. 
Texas.  A  witness  cannot  refresh  his  memory  from  mem- 
oranda made  at  his  dictation  by  his  attorney  from  old 
letters,  memoranda  and  receipts;  the  original  documents 
could  be  used  for  that  purpose,  but  not  the  copies. — Wat- 
son v.  Miller,  82  Tex.  279,  17  S.  W.  1053. 

.  *   ■      i    ...  ■  *  .  ■i_:.u...',.v! 

Copy  of  an  Original. 
Arkansas.  A  copy  of  a  copy  of  an  account  sued  on  may 
be  used  by  plaintiff  to  refresh  his  memory,  where  it  is 
shown  that  the  copy  is  a  true  one. — Brinkley  Car  Works 
Mfg.  Co.  v.  Farrell,  72  Ark.  354,  80  S.  W.  749. 
California.  Where  the  deposition  of  a  party  was  attempted 
to  be  made,   but  for  some   reason  it  was  not  signed,  the 


EXAMINATION  OF  WITNESSES.  931 

stenographer  who  took  the  testimony  may  refresh  his 
memory  from  his  transcription  of  notes  of  the  testimony, 
and  may  read  the  contents  of  the  memoranda  to  the  court. 
— Burbank  v.  Dennis,  101  Cal.  90,  35  P.  444. 
Colorado.  It  is  not  necessary  that  a  writing  used  by  a 
witness  to  refresh  his  memory  be  an  original  writing,  pro- 
vided that  after  inspecting  it  the  witness  can  speak  to 
the  facts  from  his  own  recollection.  As  to  the  time  when 
such  writing  should  have  been  made,  precise  rule  can  be 
stated. — Lawson  v.  Glass,  6  Colo.  134. 

For  the  purpose  of  refreshing  his  memory  and  enable 
him  to  state  with  accuracy  facts  concerning  which  he  has 
independent  knowledge,  a  witness  may  be  allowed  to  refer 
to  memoranda  taken  from  a  book  kept  by  him,  although 
the  original  book  is  not  produced. — Denver  &  Rio  Grande 
Ry.  Co.  v.  Wilson,  4  Colo.  App.  355,  36  P.  67;  Lawson  v. 
Glass,  6  Colo.  134;  Michigan  Ins.  Co.  v.  Wich,  8  Colo.  App. 
409,  46  P.  687. 

Montana.  A  stenographer  who  took  the  testimony  of  a 
witness  at  a  former  trial  may,  where  his  notes  have  been 
lost,  read  his  transcript  thereof,  after  testifying  that  they 
are  an  accurate  translation  of  the  notes,  and  that  he  has 
no  independent  recollection  of  the  testimony. — O'Rourke 
v.  Grand  Opera  House  Co.,  47  Mont.  459,  133  P.  965. 
Nebraska.  Whore  a  witness  testified  that  the  figures  used 
by  him  to  refresh  his  memory  were  made  at  the  time  of 
the  transaction  recorded,  and  were  correct,  but  that  he 
had  lost  the  original,  and  that  the  copy  was  correct,  the 
testimony  is  admissible.—  Anderson  v.  Imhoff.  :!4  Neb.  335, 
:>1    \\  \V.  854. 

Oklahoma.  An  officer  who  has  taken  goods  upon  legal 
process  may  refresh  his  memory  from  a  typewritten  copy 
of  his  return  upon  process  showing  the  property  taken  by 
himself,  which  copy  was  made  in  his  presence  and  under 
his  direction.— Flohr  v.  Territory,   14   Okl.  477,  78   P.   565. 

Texas.  A  memorandum  hook  being  the  primary  and  best 
evidence,  a  copy  of  such  book  cannot  be  used  to  refresh 
the  memory  of  the  witness  where  the  original  is  not  ac- 


932  EXAMINATION  OF  WITNESSES. 

counted  for.— Brynes  v.  Pacific  Express  Co.,    (Tex.  App.). 
15   S.  W.   46. 

A  witness  may  refresh  his  memory  as  to  amounts  paid 
by  means  of  an  extract  taken  from  a  book  in  which  the 
entries  were  made  by  him  at  the  time  of  payment. — Faver 
v.   Bowers.    (Tex.   Civ.  App.).   33   S.  W.   131. 

Use  of  Petition  or  Complaint. 
South  Dakota.     A  witness  may  refresh  his  memory  as  to  an 
amount  paid  him  for  coal  by  the  defendant,  by  referring 
to  his  complaint  in  the  action. — Brown  v.  Smith,  24  S.  D. 
231,  123  N.  W.  689. 

Texas.  A  witness  may  refresh  his  memory  by  reference 
to  the  petition  in  the  case,  he  having  dictated  it  to  his 
counsel  from  a  list  of  articles  made  out  by  him. — Ham- 
mond v.  Decker.  46  Tex.  Civ.  App.  232,  102  S.  W.  453. 
Washington.  The  memory  of  a  witness  may  be  refreshed 
by  a  bill  of  particulars  attached  to  a  complaint  and  made 
in  the  handwriting  of  the  witness. — Williams  v.  Miller  & 
Co.,  1  Wash.  Ter.  88. 

Use  of  Bill  of  Exceptions  and  Statement  of  Facts. 
Kansas.  Where  an  attorney  who  was  present  at  the  for- 
mer trial  representing  one  of  the  parties  in  the  case,  is 
called  to  give  in  evidence  the  testimony  of  a  deceased 
witness  at  that  trial,  he  may  refresh  his  recollection  from 
the  bill  of  exceptions,  or  read  the  bill  of  exceptions  pur- 
porting to  contain  the  testimony  of  the  deceased  witness, 
if  he  shows  that  he  examined  the  bill  and  assisted  in  its 
preparation,  and  knew,  when  the  matters  therein  con- 
tained were  fresh  in  his  memory,  that  the  bill  stated  what 
the  deceased  witness  testified  to.  In  such  case  the  testi- 
mony of  the  deceased  witness  embraced  in  the  bill  of  ex- 
ceptions, and  sworn  to  be  correct  by  a  person  present  at 
the  former  trial,  goes  before  the  jury  in  connection  with 
his  oral  testimony. — Solomon  Railroad  Co.  v.  Jones,  34 
Kan.  443,   8  P.   730. 

Texas.     A  prosecuting  attorney  may  read  from  the  state- 
ment of  facts  in  a  former  trial  and  ask  witness  if  she  made 


EXAMINATION  OF  WITNESSES.  933 

certain  statements. — Pool  v.  State,  51  Tex.  Cr.  R.  596,  103 
S.   W.   892. 

Use  of  Prior  Testimony  or  Statements  of  Witness. 
Arkansas.     A    witness    may    refresh    his    memory    by    his 
deposition  taken  before  a  magistrate. — Atkins  v.  State,  16 
Ark.   568. 

Where  the  prosecuting  witness  did  not  have  good  rec- 
ollection as  to  the  purchase  of  liquor  from  defendant,  it 
was  not  error  to  permit  the  prosecuting  attorney,  for  the 
purpose  of  refreshing  his  memory,  to  ask  him  whether 
he  had  not  made  certain  statements  to  himself  and  the 
grand  jury.— Thomasson  v.  State.  80  Ark.  364,  97  S.  W.  297. 
California.  Where  a  witness  states  that  accused  had  held 
a  certain  conversation  with  him,  but  said  he  could  not  re- 
member what  accused  had  said,  he  may  be  asked,  in  order 
to  refresh  his  memory,  if  he  did  not  on  a  designated  occa- 
sion make  a  statement  to  certain  parties  as  to  what  de- 
fendant had  said. — People  v.  Duncan.  8  Cal.  App.  186,  96 
P.   414. 

Texas.  A  witness  in  a  criminal  case  may  refresh  his  rec- 
ollection as  to  a  date,  and  correct  his  testimony  by  a  ref- 
erence to  his  testimony  on  a  preliminary  examination. — 
White  v.  State,  18  Tex.  App.  57. 

Where  a  witness  for  the  prosecution  testified  that  he 
could  not  read,  and  showed  clearly  that  he  was  an  unwill- 
ing witness,  the  state's  counsel  may  refresh  his  memory 
by  reading  his  testimony  given  at  a  preliminary  examina- 
tion.—Carpenter  v.  State.   (Tex.  Cr.    R.),  51   S.   W.  227. 

A  witness  for  the  state,  to  refresh  his  memory,  may 
read  a  statement  made  and  signed  by  him  before  the 
.•rand  jury.  Smith  v.  State,  46  Tex.  Cr.  R.  267,  81  S. 
W    936. 

TIME   OF   MAKING    MEMORANDA. 
California,     a    witness    ma  his   memory    with    a 

memorandum  made  by  himself  or  under  his  direction  at 
any   time   when   the   fad    was   fresh   in    his   memory.      P 
v.  Carter,  64  Cal.   189,  2  I'.  260. 


934  EXAMINATION  OF  WITNESSES. 

Nebraska.  Memoranda  to  refresh  the  memory  of  a  wit- 
ness must  have  been  made  up  recently  after  the  fact  in 
regard  to  which  he  testifies.  Memoranda  prepared  by  the 
attorneys  of  the  witness  several  months  after  the  occur- 
rence of  the  facts  testified  to,  such  memoranda  being  pre- 
pared from  other  evidence  in  possession  of  the  witness, 
are  not  admissible  to  refresh  his  memory. — Schuyler  Nat. 
Bank  v.  Bollong,  24  Neb.  825,  40  N.  W.  413. 

A  memorandum  made  at  the  time  of  the  fact  in  ques- 
tion, or  soon  afterwards,  Avhich  witness  knows  to  be  cor- 
rect, may  be  used  to  refresh  memory. — Kearney  v.  City  of 
Themanson,  48  Neb.  74,   66  N.  W.  996. 

But  one  made  months  after  cannot  be  so  used. — Weston 
v.  Brown.   30  Neb.   609,  46  N.  W.  826. 

A  memorandum  which  it  appears  was  prepared  at  the 
time  of  the  fact  in  question,  or  soon  afterwards,  which 
the  witness  knew  to  be  correct  at  the  time  it  was  made, 
may  be  used  by  the  witness  to  refresh  his  memory. — Atchi- 
son, T.  &  S.  F.  It.  Co.  v.  Lawler,  40  Neb.  356,  58  N.  W.  968. 

Wyoming.  Plaintiff's  bookkeeper  may  refresh  his  mem- 
ory as  to  the  amount  of  goods  destroyed  by  fire,  by  con- 
sulting a  schedule  of  such  goods  made  up  soon  after  the 
fire  from  recollection  and  duplicate  invoices  obtained  from 
the  merchants  who  sold  the  goods  to  plaintiff. — Kahn  v. 
Trader's  Ins.  Co..  4  Wyo.  419.  34  P.  1059. 

Introduction    of    Memoranda    In    Evidence. 

California.  A  witness  may  refresh  his  memory  by  a 
written  entry  or  memorandum  made  at  the  time,  and  it 
is  not  necessary  that  the  writing  itself  be  admissible  in 
evidence.— People  v.  Vann,   129  Cal.   US,   61  P.  776. 

Montana.  The  value  of  goods  in  question  could  be  shown 
by  the  testimony  of  a  witness  who  spoke  from  knowledge 
upon  that  subject,  and  could  not  be  shown  by  the  intro- 
duction in  evidence  of  mere  memoranda  used  by  the  wit- 
ness as  an  aid  to  his  memory. — Kipp  v.  Silverman.  25 
Mont.   296.   64   P.   884. 


EXAMINATION  OF  WITNESSES.  935 

Nebraska.  An  itemized  statement  in  the  form  of  a  mem- 
orandum of  goods  purchased  and  added  to  the  stock  de- 
scribed in  an  inventory  may  be  used  to  refresh  the  mem- 
ory of  a  witness  as  to  the  particular  items  of  the  goods 
alleged  to  have  been  converted,  and  where  the  witness 
testifies  that  he  made  such  memorandum  himself,  and  that 
it  is  correct,  it  may  be  introduced  in  evidence  to  corro- 
borate his  testimony.— Gross  v.  Scheel,  67  Neb.  223,  93 
N.  W.  418. 

Oklahoma.  Written  memoranda  of  subjects  and  events 
pertinent  to  the  issues  in  a  cause,  made  contemporaneously 
with  their  taking  place,  when  shown  by  the  oath  of  the 
person  making  them  that  they  were  known  to  be  correct 
when  made,  may,  when  the  memory  of  the  witness  is  defic- 
ient, be  used  to  refresh  the  memory  of  the  witness;  and, 
when  so  used,  if  the  witness  is  unable  to  state  the  facts 
so  recorded,  such  memoranda  may  be  introduced  in  evi- 
dence, not  as  independent  proof,  but  to  supply  rhe  details 
of  what  the  witness  has  sworn  to  generally. — First  Nat. 
Bank  v.  Yeoman.  14  Okl.  626,  78  P.  388. 
Oregon.  Original  memoranda  of  witnesses  showing  dates 
of  their  inspections  of  engines  must  be  produced,  if  they 
are  unable  to  testify  to  the  facts  thereby  recorded  with- 
out and  independently  of  them;  and  it  would  be  com- 
petent to  submit  them  to  the  jury. — Manchester  Assur. 
Co.  v.  Oregon  It.  Co.,  46  Or.  162,  79  P.  60. 
South  Dakota.  It  is  never  admissible  to  obtain  the  recep- 
tion in  evidence  of  written  or  primed  papers,  otherwise 
Incompetent,  under  the  guise  ami  pretense  of  refreshing 
the  memory.— State  v.  Bun  14,   L26  X.  \V.  572 

Wyoming.  While  the  freight  books  of  a  railroad  company 
may  be  used  to  refresh  the  memory  of  a  witness  win  has 
made  entries  in  them,  the  books  in  themselves  are  not 
evidence  and  may  be  excluded  as  such  -Martin  v.  Union 
Pacific    Ry.  Co..    1   Wyo.    1  13. 

DISCRETION  OF  COURT. 
Arkansas.     The  trial   judge   has  a   large   discretion   in    per- 
mitting a   witness  to  refresh   his  memory.— ThomasBOn   v. 
State.  80  Ark.  :j(i  1.  97  S.   W.  297 


936  EXAMINATION  OF  WITNESSES. 

South   Dakota.  i  within  the  discretion  of  the  court  to 

permit  a  witness  i.O' refer  to  a  memorandum  to  refresh 
his  memory.     Bnr,  a  v.  Smith,  24  S.  D.  231,  123  N.  W.  689. 

Article  137. 
bight  ok  advicrse  party  as  to  writing  used  to  refresh 

MEMORY. 

Any  writing  referred  to  under  article  136  must 
be  produced  and  shown  to  the  adverse  party  if  he 
requires  it;  and  such  party  may,  if  he  pleases, 
cross-examine  the  witness  thereupon,  (a) 

INSPECTION    OF    WRITING    USED   TO    REFRESH 
MEMORY. 

Colorado.  Where  opposing  counsel  demanded  to  see  the 
entire  book  to  which  a  witness  referred  in  order  to  refresh 
his  memory  as  to  certain  items,  the  demand  not  being  con- 
fined simply  to  the  memoranda  concerning  the  business 
involved  in  the  suit,  there  was  no  error  in  overruling  a 
motion  to  suppress  all  testimony  relating  to  the  matters 
stated  in  the  book. — Parks  v.  Biebel,  18  Colo.  App.  12,  69 
1'.  273. 

Kansas.  Any  writing  used  by  a  witness  to  refresh  his 
memory  must  be  produced  and  shown  to  the  adverse  party, 
if  he  requires  it,  and  such  adverse  party  may  cross-examine 
the  witness  thereon. — Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Hays, 
8  Kan.  App.  545,  54  P.  322. 

Nebraska.  Anything  referred  to  by  a  witness  to  refresh 
his  memory  must  be  shown  to  the  adverse  party,  if  so  de- 
sired, and  he  may  cross-examine  the  witness  thereon;  but 
it  is  not  required  to  put  the  paper  in  evidence. — Schuyler 
Nat.  Bank  v.  Bullong,  24  Neb.  825,  40  N.  W.  413. 
Oregon.  Section  836,  Hill's  Ann.  Laws,  providing  that 
under  certain  circumstances  a  witness  may  refresh  his 
memory  by  memorandum   made   by  himself  or  under  his 

(a)    See   cases    in    R.    N.    P.    195. 


EXAMINATION  OF  WITNESSES.  937 

direction,  and  that  the  writing  must  be  produced  for  in- 
spection, applies  only  where  the  witness  consults  the 
writing  while  under  examination. — State  v.  Magers,  36  Or. 
38.  58*P.  892. 

Where  a  witness,  whether  before  trial  or  while  under 
examination,  has  referred  to  a  writing  to  refresh  his  mem- 
ory, opposing  counsel  is  not  entitled  to  have  it  produced 
for  inspection  if  the  witness's  recollection  is  thereby  so 
revived  that  he  is  able  to  state  the  facts  of  his  own  knowl- 
edge independently  of  the  writing;  but  if,  after  examining 
the  writing  the  witness  cannot  recall  the  facts,  and  is  de- 
pendent on  the  memoranda  which  he  believes  states  the 
truth,  the  writing  must  be  produced  and  submitted  for  in- 
spection.—State  v.  Magers,  36  Or.  38,  58  P.  892. 
South  Dakota.  Where  the  testimony  of  a  witness  in  chief 
is  based  upon,  and  inseparable  from,  a  memorandum  in 
writing,  he  not  being  able  to  remember  independently 
thereof,  the  opposite  party  is  entitled  to  such  writing  as 
a  part  of  the  cross-examination. — Mt.  Terry  Min.  Co.  v. 
White.  10  S.  I).   620,   7  1   N.    W.   1060. 

Texas.  Defendant  is  entitled  on  cross-examination  to  in- 
sped  a  written  statement  made  by  prosecuting  witness 
before  a  grand  jury  and  used  by  him  to  refresh  his  mem- 
ory.    Green  v.   State,   53  Tex.  Cr.  R.  490,  110  S.  W.  920. 

Amu  u:  138. 

GIVING,    AS   EVIDENCK,    DOCUMENT  CALLED   FOB    \NH   PRODUCED 

o\    NOTICE. 

When  a  party  calls  for  a  document  which  he  has 
given  the  other  party  notice  to  produce,  and  such 
docuinent  is  produced  to,  and  inspected  by,  the 
party  calling  for  its  production,  he  is  bound  to 
give  it  as  evidence  if  the  party  producing  it  re- 
quires him  to  do  so,  ;\)u\  if  it  is  or  is  deemed 
to  be  relevant,  (a) 

(a)    Wharam   v.   Routledge,   i    !■:-■  Lverl   \     Flower,  7 

C.  &  P.  386.  |  Tins  is  the  general  bul  m>t  uniform  rule  In 
this    count  ry.      I    Greenl.    Ev.,    §    563. 1 


938  EXAMINATION  OF  WITNESSES. 

Article  1P>9. 

USING,    AS    EVIDENCE,   A   DOCUMENT,   PRODUCTION    OF   WHICH   WAS 
REFUSED  ON   NOTICE. 

When  a  party  refuses  to  produce  a  document 
which  he  has  had  notice  to  produce,  he  may  not 
afterwards  use  the  document  as  evidence  with- 
out the  consent  of  the  other  party,  (a) 


(a)    Doe  v.   Hodgson,   12   A.   &  E.   135;    [Bogart  v.   Brown,   5 
Pick.    (Mass.)    18;]   but  see  remarks   in  2   Ph.  Bv,   270. 


DEPOSITIONS.  939 


CHAPTER  XVII. 

OF   DEPOSITIONS,    (a) 

Article  140. 
depositions    befoke    magistrates. 

A  deposition  taken  under  11  &  12  Vict.  c.  42, 
s.  17,  may  be  produced  and  given  in  evidence  at 
the  trial  of  the  person  against  whom  it  was 
taken, 

if  it  is  proved  [to  the  satisfaction  of  the  judge] 
that  the  witness  is  dead,  or  so  ill  as  not  to  be  able 
to  travel  [although  there  may  be  a  prospect  of 
his  recovery]  (b) 

[or,  if  he  is  kept  out  of  the  way  by  the  person 
accused]  (c) 

or  [probably  if  he  is  too  mad  to  testify], (d) 
and 

if  the  deposition  purports  to  be  signed  by  the 
justice  by  or  before  whom  it  purports  to  have 
been  taken ;  and 


(a)  [This   chapter   contains   what    is,  and   what   the  author 
thinks  ought   to  be,  the  law    upon  the  subject-matter  of  tak- 

and  using  depositions,  He  follows  the  English  statutes 
so  far  as  they  lead,  and  bases  his  suggestions  upon  decided 
cases,  and  upon  hi  nee  and   practice,     Upon   th>'   ixen- 

eral  subject,  see  2  Wigmore  Ev.,  g§  1377-1392,  L397,  1402- 
1417.     Each  State,  however,  h:>s  its  special   provisions,  a  col- 

ion  whereof  would  hardly  be  appropriate  t'>  this  com- 
pendium   "i"    genera  l    principles.  | 

(b)  R.    \ .   Stephi  nson,    I..   &    < '. 

(c)  K.   v.  Scaife,    17  Q     B     i 

(d)  Analog)    of    R,    \.    Scail 


940  DEPOSITIONS. 

if  it  is  proved  by  the  person  who  offers  it  as 
evidence  that  it  was  taken  in  the  presence  of  the 
person  accused,  and  that  he,  his  counsel,  or  attor- 
ney, had  a  full  opportunity  of  cross-examining 
the  witness; 

Unless  it  is  proved  that  the  deposition  was  not 
in  fact  signed  by  the  justice  by  whom  it  purports 
to  be  signed, 

[or,  that  the  statement  was  not  taken  upon 
oath; 

or  (perhaps)  that  it  was  not  read  over  to  or 
•signed  by  the  witness.]  (e) 

If  there  is  a  prospect  of  the  recovery  of  a  wit- 
ness proved  to  be  too  ill  to  travel,  the  judge  is  not 
obliged  to  receive  the  deposition,  but  may  post- 
pone the  trial. (f) 

DEPOSITIONS. 

General  Principles. 

Under  the  common  law,  depositions  of  witnesses  taken 
in  the  presence  of  defendant  could  be  used  at  the  trial  of 
the  cause  in  case  of  the  death  or  absence  of  the  witness, 
and  our  statutes  do  not  prohibit  their  use,  nor  is  their  use 
in  violation  of  the  Sixth  Amendment  to  the  Constitution 
of  the  United  States.— Sneed  v.  State,  47  Ark.  180;  People 
v.  Riley,  75  Cal.  98,  16  P.  544;  Territory  v.  Evans,  2  Ida. 
627,  23  P.  232;  Hair  v.  State,  16  Neb.  601,  21  N.  W.  464; 
Greenwood  v.   State.   35  Tex.   587. 

(e)    I    believe    the    above    to    be    the    effect   of    11    &    1-    Vict. 

12,  s.  17,  as  interpreted  by  the  cases  referred  to,  the  effect 
of  which  is  given  by  the  words  in  brackets,  also  by  common 
practice.  Nothing  can  be  more  rambling  or  ill-arranged  than 
the  language  of  the  section  itself.  See  1  Ph.  Ev.  87-1  no ;  T.  E. 
s.    lis,   &C. 

ffl    R    v.  Tait,  2  F.  &   P.  55:?. 


DEPOSITIONS.  941 

It  was  error  to  admit  in  evidence  a  deposition  where  it 
appears  that  the  witness  was  in  court  at  the  time  of  the 
trial  and  had  already  been  sworn  as  a  witness  in  behalf 
of  the  defendant  and  excluded  from  the  court  room  during 
the  examination  of  the  other  witnesses  by  order  of  the 
court  and  these  facts  were  shown  before  the  deposition 
was  read. — Chicago,  K.  &  W.  Ry.  Co.  v.  Prouty,  55  Kan.  503, 
40  P.  909;  Moline  Plow  Co.  v.  Gilbert,  3  Dak.  239,  15  N. 
\V.  1;    McClure  v.  Sheek's  Heirs.  68  Tex.  426,  4  S.  W.  552. 

Though  there  is  no  statutory  provision  for  the  inclusion, 
of  exhibits  in  a  deposition,  if  they  are  made  a  part  thereof 
and  the  answers  of  the  deposition  so  describe  them  as  to 
render  their  identity  certain,  or.  if  their  identity  is  clearly 
established  by  extraneous  evidence,  they  are  admissible 
in  connection  with  the  deposition  though  they  were  not 
inclosed  in  the  envelope  containing  the  certificate  and 
were  sent  in  an  unsealed  and  separate  package. — San  An- 
tonio &  A.  P.  Ry.  Co.  v.  Stuart,  (Tex.  Civ.  App.),  178  S. 
\V.  17;  Pope  v.  Anthony,  29  Tex.  Civ.  App.  298,  68  S.  W. 
521;  Toby  v.  Oregon  Pacific  Ry.  Co.,  98  Cal.  490,  33  P.  550. 
Arkansas.  Where  a  deposition  in  chancery  is  objected  to 
as  containing  leading  interrogatories,  the  proper  practice 
is  to  point  to  the  particular  interrogatories  which  are 
claimed  to  be  leading  and  not  to  object  generally. — Clark. 
Adx..   v.   Moss.   11   Ark.   736. 

The  deposition  of  deceased  witness  is  admissible  in  e   A* 
dence  though  he  resided  in  the  county  where  it  was  ta' 
and  within  thirty  miles  of  the  place  where  the  court      wa    s 
held. — Lawrence  v.  La  Cade.  4U  Ark.  378. 

The  deposition  of  a  witness  convicted  of  murder  aft  er 
it  was  taken,  la  rendered  Incompetent  by  his  con?  icll«  >n, 
and  cannot  be  admitted  alter  his  execution,  altlr  jugb  it 
was  read  on  a  former  trial  which  took  place  before  hjs  ,  zon. 
miction.— St.  Louis.  I  \!  ft  S.  Ry.  Co.  vr.  Harper.  .-,i  Ark 
157.   6  S.   W.   720. 

California.  The  testimony  of  a  party  to  an  act)  on  ma;  v  be 
taken  by  deposition  if  he  resides  out  of  the  Bt?  te  in  w  Men 
his    testimony    may    be   used,    although    he    re    sides    wi    thin 


942  DEPOSITIONS. 

thirty  miles  of  the  place  of  trial.— Skidmore  v.  Taylor,  29 
Cal.  619. 

To  an  objection  to  the  reading  of  a  deposition  because 
there  was  an  insufficient  showing  that  the  witness  was  out 
of  the  jurisdiction  of  the  court,  it  was  sufficient  to  show 
by  testimony  of  a  wtiness  that  he  knew  deponent  for  about 
ten  months,  and  had  occasion  to  search  for  him,  and  that 
he  made  inquiries  for  the  purpose  of  seeing  whether  he 
was  in  town  or  not,  and  inquired  at  his  former  place  of 
business  and  was  told  that  he  was  out  of  the  state. — Ren- 
ton  v.  Monnier,  77  Cal.  449,  19  P.  820. 

The  presence  of  a  party  whose  deposition  has  been  taken 
is  never  required  and  the  deposition  may  be  read  on  the 
trial  by  the  other  party  though  he  is  in  the  court  room 
when  it  is  read.— Johnson  v.  McDuffee,  83  Cal.  30,  23  P. 
214. 

Plaintiff  has  the  right,  under  the  statute,  to  read  the 
deposition  of  a  witness  though  he  has  been  present  at  the 
trial  and  that  other  witnesses  were  present  by  whom  he 
could  have  proved  the  same  facts. — Johnson  v.  McDuffee, 
83  Cal.  30,  23  P.  214. 

Colorado.  A  deposition  taken  in  an  attachment  suit  upon 
notice  that  the  deposition  would  be  read  upon  the  trial  of 
the  case,  and  the  witness  being  sworn  to  testify  in  the 
case,  is  not  admissible  upon  the  trial  of  an  issue  between 
interpleading  claimants  of  the  property  attached  and  the 
plaintiffs  in  attachment. — Doane  v.  Glenn,  1  Colo.  495. 

A  commission  issued  to  take  a  deposition  of  a  witness 
and  directed  "To  any  notary  public,  justice  of  the  peace, 
clerk  of  a  court  of  record  or  any  party  authorized  to  ad- 
minister oaths  in  Deer  Lodge  County,  territory  of  Mon- 
tana." and  the  certificate  to  the  return  thereof  with  said 
commission  was  signed  "W.  A.  A.,  commissioner,"  and 
there  was  nothing  to  show  that  the  said  A  was  clothed 
with  any  official  character,  it  was  held  that  the  deposition 
could  not  be  read. — Argentine  Falls  Silver  Min.  Co.  v. 
Molson,   12  Colo.  405,  21  P.  190. 


DISPOSITIONS.  943 

Idaho,  it  will  be  presumed  thai  a  commissioner  before 
whom  a  deposition  is  taken,  did  all  that  he  was  required 
to  do  in  his  official  capacity,  -Darby  v.  Heagerty,  2  Ida. 
260,  13  P.  85. 

Kansas.  It  was  error  to  permit  the  introduction  in  evi- 
dence of  a  deposition  of  a  witness  who  was  in  the  county 
where  the  case  was  being  tried,  the  deposition  itself  show- 
ing that  the  witness  was  a  resident  of  the  county. — Chi- 
cago. K.  &  X.  Ry.  Co.  v.  Brown,  44  Kan.  384,  24  P.  497. 

An  objection  to  the  reading  of  deposition  on  the  ground 
that  the  witness  is  present  in  the  county  of  the  trial,  that 
he  has  been  in  attendance  to  the  court  as  a  witness  and 
he  is  at  present  on  his  way  to  the  place  of  trial,  is  not 
good  where  the  deposition  was  then  read  and  after  the 
reading  of  it  an  offer  was  made  to  prove  that  at  the  time 
of  the  reading  the  witness  was  present  in  the  court  room. 

•Eby  v.  Winters.  51  Kan.  777,  34  P.  471. 
Nebraska.  A  notice  to  take  a  deposition  of  a  witness 
therein  named,  that  the  deposition  would  be  taken  "at  the 
office  of  M.  C.  L.,  in  the  town  of  T..  county  of  L.,  and 
State  of  I."  was  held  to  contain  a  sufficient  description  of 
the  place  of  taking  of  the  deposition. — Britton  v.  Berry, 
:'o  Neb,  325,  30  X.  W.  254. 

It  was  held  to  be  a  sufficient  compliance  with  the  statute 
requiring  depositions  to  be  "subscribed  by  the  witness." 
that  the  names  of  the  witnesses  to  the  deposition  were  at- 
tached thereto  with  a  cross  between  the  christian  and  the 
surname,  and  the  word  "his"  written  before  and  the  word 
"mark"  written  below  the  cross,  and  followed  by  the  words 
"subscribed  and  sworn  to  before  me  and  in  my  presence. 
M.  ('.  L..  Notary  Public."— Britton  v.  Berry.  20  Neb.  "l1.".  30 
X     \V.  254, 

Sec.  386  of  the  Code  provides  thai  "when  the  deposition 
is  offered  to  be  rear]  in  evidence,  it  must  appear,  to  the 
satisfaction  of  the  court,  that,  for  any  case  specified  in 
Section  372,  the  attendance  of  the  witness  cannot  be  pro- 
cured." By  these  sections  it  devolves  upon  the  party  of- 
fering   in    read   the   deposition   to  show    that,    for  at    least 


044  DEPOSITIONS. 

one  of  the  cases  mentioned  in  Sec.  372,  the  witness  must 
be  produced.— Everett  v.  Tidball,  34  Neb.  803,  52  N.  W.  816. 

Under  section  372  of  the  Code,  the  deposition  of  a  wit- 
ness may  be  used  only  in  the  following  cases:  (1)  Where 
the  witness  does  not  reside  in  the  county  where  the  action 
or  proceeding  is  pending  or  has  been  sent  for  trial  by  a 
change  of  venue,  or  is  absent  therefrom;  (2)  or  from  age, 
infirmity  or  imprisonment  the  witness  is  unable  to  attend 
the  court,  or  is  dead;  (3)  when  the  testimony  is  required 
upon  the  motion,  or  in  any  other  case  where  the  oral  ex- 
amination of  the  witness  is  not  required. — Everett  v.  Tid- 
ball, 34  Neb.  803.  52  N.  W.  816;   41  Neb.  849,  60  N.  W.  97. 

A  certificate  to  a  deposition,  showing  that  the  witnesses 
were  sworn  to  testify  the  truth,  the  whole  truth  and  noth- 
ing but  the  truth,  without  naming  the  case  or  matter  in 
or  about  which  they  were  sworn,  but  showing  the  other 
tacts  prescribed  by  the  statutes,  is  sufficient. — Jameson 
v.   Butler.   1  Neb.   115. 

Nevada.  Where  it  was  agreed  by  stipulation  that  a  deposi- 
tion be  taken  before  a  certain  justice  of  the  peace,  such 
stipulation  concedes  that  there  was  such  a  person  occupy- 
ing an  official  position  as  justice  of  the  peace,  and  was  an 
agreement  under  the  statute  that  such  person  was  to  take 
the   deposition. — Blackie   v.    Cooney,    8    Nev.   41. 

The  use  of  the  word  "signature"  instead  of  the  word 
"mark"  by  the  magistrate  before  whom  a  deposition  was 
taken,  and  the  misplacing  of  the  words  "witness  to  the 
above  surname"  by  the  magistrate  below  his  jurat,  are  mere 
informalities  and  did  not  vitiate  the  deposition. — State  v. 
Depoister,  21  Nev.  107.  25  P.  1000. 

Oklahoma,  The  taking  of  testimony  by  deposition  is.  in 
a  sense,  a  part  oi'  the  trial,  and  the  onposine.  party  has  the 
right  In  confront  the  witness  whose  depositions  were  taken 
under  notice  and  have  counsel  present  to  aid  in  the  exam- 
ination thereof. — Gillis    v.    First    National   Bank  of  Frcder- 

(Okl.),   148  P. 
Texas.     It  will  be  lumed,  in  order  to  authorize  the  in- 

troduction of  a  deposition  laken  de  bene  esse,  that  the  wit- 
ness is  beyond  the  limits  of  the  county,  and  it  is  not  neces- 


DEPOSITIONS.  945 

sary  that  there  should  be  an  affidavit  stating  that  tact 
absolutely.  — O'Shea   v.    Twohig,   9   Tex.   336. 

Where  an  officer  before  whom  a  deposition  was  taken 
fails  to  certify  that  the  same  was  signed  by  the  witness, 
the  deposition  cannot  be  received  in  evidence  if  the  objec- 
tion be  properly  taken. — Thompson  v.  Hale,  12  Tex.  139; 
Trammel!  v.   McDade.  29  Tex.  360. 

The  right  to  perpetuate  the  testimony  of  witnesses  by 
examination  before  an  officer  duly  authorized,  was  recog- 
nized and  established  by  the  civil  law  many  centuries  ago, 
and  was  the  law  of  Mexico  and  of  Texas  as  a  part  of  Mex- 
ico previous  to  the  revolution. — Sullivan  v.  Dimmitt,  34 
Tex.  114. 

Where  upon  motion  to  suppress  a  deposition  upon  the 
ground  that  the  witness  failed  to  answer  a  material  cross- 
interrogatory,  and  it  appeared  from  other  parts  of  the 
deposition  that  the  witness  had  stated  clearly  the  facts 
sought  for  by  the  cross-interrogatory,  the  motion  was 
properly  overruled. — Bush  v.  Barron,  78  Tex.  5,  14  S. 
W.   238. 

So  much  of  a  deposition  of  a  witness  as  is  not  pertinent 
to  the  interrogatories  propounded,  should,  if  properly  ob- 
jected to,  be  stricken  out. — Lee  &  Co.  v.  Stowe,  57  Tex. 
444. 

An  objection  to  a  question  as  leading,  is  an  objection 
not  to  the  substance  or  relevancy  of  the  evidence,  but  to 
the  form  and  manner  of  obtaining  it.  and  should  be  made 
at  the  time  the  question  Is  propounded;  but  if  not  in.nl>' 
then,  or  within  proper  time  before  the  case  is  called  for 
trial,  it  will  be  considered  as  waived.  Lee  &  Co.  v.  Slow.-. 
57  Tex.    in 

An  objection  to  a  deposition  upon  the  ground  thai  an 
Interrogatory  was  leading,  goes  to  the  form  of  the  taking 
of  the  deposition,  and  correcl  practice  requires  thai  notice 
of  such  objection  be  given  as  provided  by  statute,  other 
wise  such  objection  is  waived.— Lee  fi  Co  v.  Stowe,  ">7 
Tex.   444. 

An  objection  to  the  reading  of  a  deposition  upon  the 
ground  that  deponent   was  present   at   the  trial,  was  prop- 


946  DEPOSITIONS. 

erly  overruled,  it  appearing  that  defendant  having  full 
opportunity  to  cross-examine  the  witness. — Dillingham  v. 
Hodges,    (Tex.  Civ.  App.),  26  S.  W.  86. 

That  a  copy  of  the  interrogatories  in  a  deposition  and 
notice  were  not  served  upon  one  party,  cannot  be  taken 
advantage  of  by  another  party  not  served. — Linskie  v. 
Kerr,    (Tex.  Civ.  App.),  34  S.  W.  765. 

Utah.  The  person  appointed  by  the  court  to  take  a  depo- 
sition in  another  state,  must  be  one  of  the  specified  legal 
officers  mentioned  in  sec.  410  of  the  Practice  Act,  other- 
wise such  person  is  not  authorized  to  take  the  deposition. 
— Newton  v.  Brown,  1  Utah.  287. 

Where  a  witness,  being  examined  upon  the  taking  of 
his  deposition,  refuses  to  answer  a  material  question,  it  is 
not  error  for  the  court  to  exclude  the  whole  deposition. 
— Hadra  v.  Utah  National  Bank,  9  Utah  412,  35  P.  508. 

In  a  criminal  action  where  the  proof  is  sufficient  to  show 
that  the  witness  whose  testimony  was  taken  at  a  prelim- 
inary hearing  is,  in  fact,  out  of  the  state,  it  was  not  nec- 
essary that  further  proof,  that  special  effort  was  made  to 
find  the  witness  within  the  state,  be  offered,  in  order  to 
authorize  his  testimony  so  taken  to  be  read  in  evidence. 
—State   v.    De    Pritto,    (Utah),    155    P.    336. 

Washington.  An  answer  to  a  cross-interrogatory  in  a  depo- 
sition as  to  the  condition  in  which  a  witness  found  the 
vital  organs  of  the  deceased  when  he  performed  the  au- 
topsy is  properly  excluded  as  not  responsive,  where  the 
answer  only  stated  the  conclusion  of  the  witness  that  the 
condition  of  the  organs  was  the  same  as  would  be  caused 
by  chronic  alcoholism  and  that  the  odor  of  alcohol  was 
present. — Independent  Order  of  Forresters  v.  Bonner,  84 
Wash.  13,  145  P.  987. 


DEPOSITIONS.  947 

Article  141. 
depositions  uhdeb  30  &  31  vict.  ('.  35,  s.  6. 

A  deposition  taken  for  the  perpetuation  of  tes- 
timony in  criminal  cases,  under  30  &  31  Vict.  c. 
35,  s.  6,  may  be  produced  and  read  as  evidence, 
either  for  or  against  the  accused,  upon  the  trial 
of  any  offender  or  offense  (a)  to  which  it  relates — 

if  the  deponent  is  proved  to  be  dead,  or 

if  it  is  proved  that  there  is  no  reasonable  prob- 
ability that  the  deponent  will  ever  be  able  to 
travel  or  to  give  evidence,  and 

if  the  deposition  purports  to  be  signed  by  the 
justice  by  or  before  whom  it  purports  to  be  taken, 
and 

if  it  is  proved  to  the  satisfaction  of  the  Court 
that  reasonable  notice  of  the  intention  to  take 
such  deposition  was  served  upon  the  person 
(whether  prosecutor  or  accused)  against  whom 
it  is  proposed  to  be  read,  and 

that  such  person  or  his  counsel  or  attorney  had 
or  might  have  had,  if  he  had  chosen  to  be  present, 
full  opportunity  of  cross-examining  the  depon- 
ent, (b) 

(a)   Sic. 

<l>)  SO  &  31  Vict.  c.  35,  s.  fi.  The  section  is  very  long,  and 
as  the  first  part  of  it  belongs  rather  to  the  subject  of  criminal 
procedure  than  to  the  subject  of  evidence,  I  have  omitted 
it.  'Die  language  is  slightly  altered.  I  have  not  referred  to 
depositions  taken  before  a  coroner  (see  7  Geo.  IV.  c.  64,  s.  4), 
because  the  section  says  nothing  about  the  conditions  on 
which  they  may  be  given  in  evidence.  Their  relevancy,  there- 
fore, depends  on  the  common-law  principles  expressed  in 
article  33.  They  must  he  signed  by  the  coroner;  but  these 
aie   matters   nol   of  evidence,   hut   of  criminal  procedure. 


948  DEPOSITIONS. 

DEPOSITIONS  IN  CRIMINAL  CASES. 
Arkansas.  Defendants  in  criminal  cases  are,  under  the 
statute,  entitled  to  take  the  depositions  of  witnesses  re- 
siding out  of  the  state,  and  the  Supreme  Court  will  award 
the  writ  of  mandamus  to  compel  the  Circuit  Court  to 
make  the  necessary  order  to  enable  a  defendant  to  take 
the  deposition  in  such  a  case. — Giboney  v.  Rogers,  32 
Ark.  462. 

California.  The  deposition  of  a  witness  of  the  people  in 
a  criminal  case  may  be  taken  and  used  upon  the  trial  of 
the  case. — People  v.  Lee,  49   Cal.  37. 

The  Superior  Court  has  jurisdiction,  and  is  duty  bound, 
to  grant  an  order  of  commission  to  take  a  deposition  of  a 
witness  out  of  the  state,  to  be  used  in  a  criminal  case,  on 
behalf  of  the  defendant,  when  the  witness  is  material  and 
important  to  the  defense  and  the  showing  made  contains 
all  that  the  statute  requires. — People  v.  Lundquist,  84  Cal. 
23,   24  P.   153. 

Kansas.  Where  a  deposition  taken  by  defendant  in  a 
criminal  case  is  excluded  by  the  court,  it  is  error;  but 
where  the  material  facts  sworn  to  by  the  absent  witnesses 
were  also  proven  by  another  witness  whose  testimony  was 
wholly  uncontradicted,  and  where  the  substance  of  the  tes- 
timony excluded  was  concerning  a  remote  and  unimportant 
circumstance  which  could  not  be  of  much  weight  with  the 
jury,  it  was  not  reversible  error. — State  v.  McCarty,  54 
Kan.  52,  36  P.   338. 

A  defendant  in  a  criminal  case,  after  the  plea  of  not 
guilty  has  been  entered,  may  take  the  deposition  of  absent 
witnesses,  conditionally,  upon  a  commission  issued  by  a 
clerk  of  a  court  and  the  service  of  like  notice  on  the  prose- 
cuting attorney,  of  the  time  and  place  of  taking  such  depo- 
sition as  in  civil  cases;  and  where  depositions  are  so 
taken,  they  need  not  be  upon  written  interrogatories. — 
State  v.  McCarty,  54  Kan.  52,  36  P.  338. 

Nebraska.  A  deposition  of  a  witness  in  a  criminal  case 
cannot  be  used  in  evidence  without  proof  that,  at  the  time 
of  the  trial,  the  witness  was  sick,  out  of  the  state,  or  that 


DEPOSITIONS.  949 

his  personal  attendance  could  not  be  had  in  court. — State 
v.  Parker,  16  Nev.  79. 

Texas.  A  consul  of  the  United  States  is  a  competent  offi- 
cer to  take  a  deposition  of  a  witness  residing  beyond  the 
boundaries  of  this  country. — Adams  v.  State.  19  Tex.  App. 
250. 

At  common  law,  depositions  in  a  criminal  case  were 
unknown;  and  it  is  only  by  virtue  of  the  statute  that  they 
can  be  taken  and  received  in  evidence,  and  where  a  de- 
fendant seeks  to  avail  himself  of  this  mode  of  making 
proof  he  must  comply  substantially  with  .the  requirements 
of  the  statute. — Adams  v.  State,  19  Tex.  App.  250. 
Washington.  Depositions  in  a  criminal  case,  tending  to 
show  the  good  character  of  defendant,  are  inadmissible  in 
evidence.— State  v.  Humason,  5  Wash.  499,  32  P.  111. 

Article  142. 

DEPOSITIONS    I   NDKi:    MERCHANT    SHIPPING    ACT,    1854. 

(a)  Whenever,  in  the  course  of  any  legal  pro- 
ceedings instituted  in  any  part  of  Her  Majesty's 
dominions  before  any  judge  or  magistrate  or  be- 
fore any  person  authorized  by  law  or  by  consent 
of  parties  to  receive  evidence,  the  testimony  of 
any  witness  is  required  in  relation  to  the  subject- 
matter  of  such  proceeding,  any  deposition  that 
such  witness  may  have  previously  made  on  oath 
in  relation  to  the  same  subject-matter  before  any 
justice  or  magistrate  in  Her  Majesty's  dominions 
or  any  British  consular  officer  elsewhere  is  ad- 
missible in  evidence,  subject  to  the  following  re- 
strictions : — 


(a)    IT    &    18    Viet.    c.    mi,    s.    270.      There    are    some    other 
es    in    which    depositions    arc    admissible    by    statute,    but 
they  hardly   belong  to   tin*   Law    of   Kvklence. 


, 


950  DEPOSITIONS. 

1.  If  such  proceeding  is  instituted  in  the  Uni- 
ted Kingdom  or  British  possessions,  due  proof 
must  be  given  that  such  witness  cannot  be  found 
in  that  kingdom  or  possession  respectively. 

2.  If  such  deposition  was  made  in  the  United 
Kingdom,  it  is  not  admissible  in  any  proceeding 
instituted  in  the  United  Kingdom. 

3.  If  the  deposition  was  made  in  any  British 
possession,  it  is  not  admissible  in  any  proceeding 
instituted  in  the  same  British  possession. 

4.  If  the  proceeding  is  criminal,  the  deposition 
is  not  admissible  unless  it  was  made  in  the  pres- 
ence of  the  person  accused. 

Every  such  deposition  must  be  authenticated 
by  the  signature  of  the  judge,  magistrate,  or  con- 
sular officer  before  whom  it  was  made.  Such 
judge,  magistrate,  or  consular  officer  must,  when 
the  deposition  is  taken  in  a  criminal  matter,  cer- 
tify (if  the  fact  is  so)  that  the  accused  was  pres- 
ent at  the  taking  thereof;  but  it  is  not  necessary 
in  any  case  to  prove  the  signature  or  the  official 
character  of  the  person  appearing  to  have  signed 
any  such  deposition. 

In  any  criminal  proceeding  the  certificate  afore- 
said is  (unless  the  contrary  is  proved)  sufficient 
evidence  of  the  accused  having  been  present  in 
manner  thereby  certified. 

Nothing  in  this  article  contained  affects  any 
provision  by  Parliament  or  by  any  local  legisla- 
ture as  to  the  admissibility  of  depositions  or  the: 
practice  of  any  court  according  to  which  deposi- 
tions not  so  authenticated  are  admissible  as  evi- 
dence. 


EVIDENCE.  HT,  L 

CHAPTER  XVIII. 

OF  IMPROPER  ADMISSION  AND  REJECTION  OF 
EVIDENCE. 

Article  143. 

A  new  trial  will  not  be  granted  in  any  civil 
action  on  the  ground  of  the  improper  admission 
or  rejection  of  evidence,  unless  in  the  opinion  of 
the  Court  to  which  the  application  is  made  some 
substantial  wrong  or  miscarriage  has  been  there- 
by occasioned  in  the  trial  of  the  action,  (a) 

If  in  a  criminal  case  evidence  is  improperly 
rejected  or  admitted,  there  is  no  remedy,  unless 


<a)  Judicature  Act,  1875,  Order  xxxix.  3.  [This  act  is 
substantially  in  affirmance  of  the  common  law,  which  holds 
that,  if  it  clearly  appears  that  the  error  could  not  affect  the 
verdict,  no  new  trial  will  be  granted.  Wright  v.  Tatham,  7 
A.  &  i  330;  Wing  v.  Chesterfield,  116  Mass.  353;  Railroad 
Co.  v.  Smith,  21  Wall.  (U.  S.)  255.  In  Thorndike  v.  Boston, 
I  Met.  (Mass.)  2  12.  it  is  said  that  no  new  trial  will  be  granted. 
If  the  Court  would  feel  bound  to  set  aside  a  different  verdict. 
based  upon  the  erroneously  admitted  or  excluded  evidence. 
The  improper  admission  of  evidence  will  be  a  ground  for  a 
new  trial,  although  the  jury  accompany  their  verdict  by  a 
statement  that  they  have  arrived  al  their  conclusion  inde- 
pendently of  the  evidence  improperly  admitted.  Bailey  v. 
Haines,  L9  L.  J.  Q.  B.  73.  In  Missouri,  even  in  a  criminal 
case,  it  has  been  held  that,  though  evidence  be  Improperly 
excluded,  yel  a  new  trial  will  nol  be  granted,  it",  upon  all 
the  evidence,  it  appears  to  the  court  thai  the  defendant  is 
bo  clearlj  guilty  thai  the  admission  <>f  the  evidence  would 
imi  have  aided  the  defendant,  state  v.  Hays,  23  Mo.  287. 
And  so  it  seems  to  have  been  held  In  Smith  Carolina,  where 
improper  evidence  was  admitted,  state  v.  Ford,  3  Strobh. 
">17.  n.:  and  In  Texas.  Boon  v.  state.  12  Texas  237:  and  in 
necticut,  state  v.  Alford,  31  Conn.  40,  Contra,  in  Cali- 
fornia.    People  v.   Williams,   18  Cal.   187.] 


952  EVIDENCE. 

the  prisoner  is  convicted,  and  unless  the  judge,  in 
his  discretion,  states  a  case  for  the  Court  for 
Crown  Cases  Reserved;  but  if  that  Court  is  of 
opinion  that  any  evidence  was  improperly  ad- 
mitted or  rejected,  it  must  set  aside  the  convic- 
tion, (b) 

IMPROPER    ADMISSION     AND     REJECTION     OF 
EVIDENCE. 

In  a  prosecution  for  incest,  it  was  reversible  error  to 
receive  prosecutrix's  declarations,  made  in  the  absence  of 
defendant,  to  corroborate  her  testimony  concerning  a  fact 
which,  in  itself,  merely  tended  to  prove  defendant's  adul- 
terous disposition  toward  her. — Peterson  v.  State,  84  Neb. 
76,  120  N.  W.  1110;  State  v.  De  Master,  15  S.  D.  581,  90 
N.  W.  852;  Poyner  v.  State,  40  Tex.  Cr.  R.  740,  51  S.  W.  376. 

Arkansas.  Where  evidence  in  a  deposition  was  adjudged 
by  the  court  inapplicable  to  the  case,  it  was  ground  for 
a  new  trial  to  permit  such  testimony  to  be  read,  unless 
reasonable  notice  to  the  party  objecting  is  given  thereby 
preventing  surprise. — The  S.  B.  Violet  v.  McKay,  23  Ark. 
543. 

California.  A  verdict  upon  appeal  will  not  be  disturbed 
if  the  evidence  was  conflicting  even  though  the  judge  who 
passed  in  the  motion  for  a  new  trial  did  not  preside  at 
the  trial  and  for  that  reason  declined  to  review  the  evi- 
dence.— Rice,  Aclm'r,  v.  Cunningham,  29  Cal.  492. 

Objections  to  the  reception  of  evidence  whether  oral  or 
in  the  form  of  depositions,  must  be  made  at  the  trial  and 
cannot  for  the  first  time  be  raised  on  motion  for  a  new 
trial.— Clark  v.  Gridley,  35  Cal.  39S. 

A  new  trial  will  not  be  granted  on  the  ground  of  newly 
discovered  evidence,  if  the  witness  might  have  been  pres- 

<b)  [The  practice  in  this  country  is  different.  We  believe 
thai  in  all  the  States  the  defendant  may  except  to  the  im- 
proper  admission  or  exclusion  of  adverse  evidence,  and  in 
some  of  the  States  the  government  may  also  except.] 


EVIDENCE.  953 

ent  at  the  trial  by  the  exercise  of  reasonable  diligence. — 
Moran  v.  Abbey,  63  Cal.  56. 

Where  the  court  excluded  the  testimony  by  which  the 
plaintiff  offered  to  maintain  the  issues  on  her  part,  and 
granted  a  non-suit,  but  afterwards  set  aside  the  non-suit 
and  ordered  a  new  trial,  such  order  was  not  error  if  the 
evidence  ottered  by  plaintiff  was  admissible. — Wheeler  v. 
Bolton,  66  Cal.  83,  4  P.  981. 

Colorado.  The  improper  admission  of  evidence  which  it 
is  not  shown  to  be  prejudicial,  does  not  call  for  a  new  trial. 
— Ullman  v.  McCormic,  12  Colo.  553,  21  P.  716. 
Kansas.  When  there  is  competent  testimony  tending  to 
establish  the  defense,  and  incompetent  testimony  has  been 
offered  by  the  plaintiff  of  such  character  as  to  be  likely  to 
influence  the  jury  and  the  verdict  is  rendered  in  his  favor, 
a  new  trial  must  be  ordered. — Mo.  Pac.  Ry.  Co.  v.  Johnson. 
55  Kan.  344,  40  P.  641. 

Where  incompetent  evidence  is  admitted  over  the  ob- 
jection of  the  adverse  party,  a  motion  for  a  new  trial  on 
that  ground  should  be  sustained,  unless  it  clearly  appears 
that  the  same  verdict  must  necessarily  have  been  returned 
had  such  evidence  been  excluded.  .Marshall  v.  Wier  Plow 
Co.,  4   Kan.  App.   615,   45'  P.   621. 

Nebraska.  Where  the  admission  of  illegal  or  irrelevant 
testimony  would  have  the  tendency  to  divert  the  minds  of 
the  jury  from  the  true  issues  involved  in  the  case,  it  con- 
stitutes good  ground  for  a  new  trial.  Harrison  v.  Maker. 
15  Neb.  43,  14  N.  \V.  541;  Simpson  v.  Armstrong.  20  Neb. 
512,  30  X.  W.  941. 

Texas.  A  court  has  a  wide  discretion  in  allowing  leading 
questions,  and  only  the  absence  of  such  discretion  affords 
ground  for  reversal. — State  v.  Bursaw.  7  1  Kan.  47::.  87  P. 
183. 

Washington.  An  order  setting  aside  a  verdict  tor  defend- 
ants and  granting  a  new  trial  on  the  ground  that  their 
evidence  did  not  sustain  their  affirmative  defense,  will  not 
be  disturbed  on  appeal  Corbitl  v.  Harrington.  II  Wash. 
L97,   11  P.   132. 


954  EVIDENCE. 

NOTE  XLVIII. 

The  Statute  Law  relating  to  the  subject  of  evidence  may 
be  regarded  either  as  voluminous  or  not,  according  to  the 
view    taken   of  the   extent   of  the   subject. 

The  number  of  statutes  classified  under  the  head  "Evi- 
dence" in  Chitty's  Statutes  is  35.  The  number  referred  to 
under  that  head  in  the  Index  to  the  Revised  Statutes  is  39. 
Many  of  these,  however,  relate  only  to  the  proof  of  particu- 
lar documents,  or  matters  of  fact  which  may  become  material 
under    special    circumstances. 

Of  these  I  have  noticed  a  few  which,  for  various  reasons, 
appeared  important.  Such  are:  34  &  35  Vict.  c.  112,  s.  19 
(see  article  11);  9  Geo.  IV.  c.  14,  s.  1,  amended  by  19  &  20 
Vict.  c.  97,  s.  13  (see  article  17);  9  Geo.  IV.  c.  14,  s.  3;  3  &  4 
Will.  IV.  c.  42  (see  article  28);  11  and  12  Vict.  c.  42,  s.  17 
(article  33);  30  &  31  Vict.  c.  35,  s.  6  (article  34);  7  James 
I.  c.  12  (article  38);  7  &  8  Geo.  IV.  c.  28,  s.  11,  amended  by 
6  &  7  Will.  IV.  c.  Ill;  24  &  25  Vict.  c.  96,  s.  116;  24  &  25 
Vict.  c.  90,  s.  37  (see  article  56);  8  &  9  Vict  c.  10,  s.  6;  35  & 
36  Vict.  c.  6,  s.  4  (article  121);  7  &  8  Will.  III.  c.  3,  ss.  2-4; 
39   &  40  Geo.   III.  c.   93    (article  122). 

Many,  again,  refer  to  pleading  and  practice  rather  than 
evidence,  in  the  sense  in  which  I  employ  the  word.  Such 
are  the  Acts  which  enable  evidence  to.  be  taken  on  commis- 
sion if  a  witness  is  abroad,  or  relate  to  the  administration  of 
interrogatories. 

Those  which  relate  directly  to  the  subject  of  evidence,  as 
defined  in  the  Introduction,  are  the  ten  following  Acts: — 

1. 

46  Geo.  III.  c.  37  (1  section;  see  article  120).  This  Act 
qualifies  the  rule  that  a  witness  is  not  bound  to  answer 
questions  which  criminate  himself  by  declaring  that  he  is 
not  excused  from  answering  questions  which  fix  him  with 
a    civil    liability. 

2. 

6  &  7  Vict.  c.  85.  This  Act  abolishes  incompetency  from 
interest    or    crime    (4    sections;    see    article    106). 

3. 

8  &  9  Vict.  c.  113:  "An  Act  to  facilitate  the  admission 
in  evidence  of  certain  official  and  other  documents"  (8th 
August,    1845;    7    sections). 

S.  1,  after  preamble  reciting  that  many  documents  are,  by 
various  Acts,  rendered  admissible  in  proof  of  certain  par- 
ticulars if  authenticated  in  a  certain  way,  enacts  inter  alia 
that  proof  that  they  were  so  authenticated  shall  not  be 
required  if  they  purport  to  be  so  authenticated.      (Article  79.) 

S.  2.  Judicial  notice  to  be  taken  of  signatures  of  certain 
judges.      (Article    58,    latter    part    of    clause    8.) 


EVIDENCE.  955 

s.  ::.  Certain  Acts  of  Parliament,  proclamations,  &c,  may 
be  proved  by  copies  purporting  to  be  Queen's  printer's  copies. 
(Article    81.) 

S.  4.  Penalty  for  forgery,  &c.  This  is  omitted  as  belong- 
ing   to    the    Criminal    Law. 

Ss.    5,    6,    7.     Local    extent   and   commencement   of  Act. 

4. 

It  &  15  Vict.  c.  99:  "An  Act  to  amend  the  Law  of  Evi- 
dence,"   7th   August,    1851    (20   sections): — 

S.  1  repeals  part  of  6  &  7  Vict.  c.  85,  which  restricted  the 
operation  of  the  Act. 

S.  2  makes  parties  admissible  witnesses,  except  in  certain 
•  rises.      (Effect  given   in   articles   106   &  108.) 

S.  3.  Persons  accused  of  crime,  and  their  husbands  and 
wives,   not  to  be  competent.      (Article   108.) 

S.  4.  The  first  three  sections  not  to  apply  to  proceedings 
instituted  in  consequence  of  adultery.  Repealed  by  32  &  33 
Vict.  c.  C8.  (Effect  of  repeal,  and  of  s.  3  of  the  last-named 
Act  given   in  article  109.) 

S.  5.  None  of  the  sections  above  mentioned  to  affect  the 
Wills  Act  of  1838,  7  Will.  IV.  &  1  Vict.  c.  26.  (Omitted  as 
part  of  the  Law  of  Wills.) 

S.  6.  The  Common-Law  Courts  authorized  to  grant  in- 
spection of  documents.  (Omitted  as  part  of  the  Law  of 
Civil   Procedure.) 

S.  7.  Mode  of  proving  proclamations,  treaties,  &c. 
(Article   81.) 

S.  8.  Proof  of  qualification  of  apothecaries.  (Omitted  as 
part  of  the  law   relating  to   medical  men.) 

Ss.   :i,    10,    n.      Documents  admissible  either   in   England   or 

in    Ireland,    or    in    the    col< !S,    without    proof    of    seal,    &c, 

admissible    in   all.      (Article   80.) 

S.  12.  Proof  of  registers  of  British  ships.  (Omitted  as 
part  of  the   law   relating  to   shipping1.) 

S.  13.  Proof  of  previous  convictions.  (Omitted  as  be- 
longing to  Criminal  Procedure.) 

S.  14.  Certain  documents  provable  by  examined  copies, 
or  copies  purporting  to  be  duly  certified.  (Article  79,  last 
paragraph.  > 

S.  15.  Certifying  false  documents  a  misdemeanor.  (Omit- 
ted   as    belonging    to   Criminal    Law.) 

S.    16.      Who    may   administer   oaths.       ("Article    125.) 

S.  17.  Penalties  for  forging  certain  documents.  (Omitted 
as  belonging  to  the  Criminal   Law.) 

S.   18.     Act  not   to   extend   to   Scotland.      (Omitted.) 

S.  19.     Meaning  of  the  word  "Colony."      (Article  80,  note  1.) 

s.   20.     Commencement   of  Act. 


956  EVIDENCE. 

5. 

17  &r  18  Vict.  c.  125.  The  Common-Law  Procedure  Act  of 
1854  contained  several  sections  which  altered  the  Law  of 
Evidence. 

S.  22.  How  far  a  party  may  discredit  his  own  witness. 
(Articles   131,   133;    and   see    Note   XLVII.) 

S.  23.  Proof  of  contradictory  statements  by  a  witness 
under  cross-examination.      (Article  131.) 

S.  24.  Cross-examination  as  to  previous  statements  in 
writing.      (Article   132.) 

S.  25.  Proof  of  a  previous  conviction  of  a  witness  may 
be   given.      (Article   130    (1).) 

S.  26.  Attesting  witnesses  need  not  be  called  unless  writ- 
ing requires  attestation  by  law.      (Article  72.) 

S.  2  7.  Comparison  of  disputed  handwritings.  (Articles 
49  and   52.) 

After  several  Acts,  giving  relief  to  Quakers,  Moravians, 
and  Separatists,  who  objected  to  take  an  oath,  a  general 
measure  was  passed  for  the  same  purpose  in  1861. 

6. 

24   &    25   Vict.   c.    66    (1st  August,   1861,    3   sections): — 

S.  1.  Persons  refusing  to  be  sworn  from  conscientious 
motives  may  make  a  declaration  in  a  given  form.  (Article 
123.) 

S.  2.  Falsehood  upon  such  a  declaration  punishable  as 
perjury.      (Do.) 

S.   3.     Commencement   of  Act. 
7. 

28   Vict.   c.    18    (9th   May,   1865,   10    sections): — 

S.  I.  Sections  3-8  to  apply  to  all  courts  and  causes,  crim- 
inal  as  well   as  civil. 

S.    3.      Re-enacts    17    &    18    Vict.    c.    125,    s.    22. 

S.    4. 


S.    5. 
S.    6. 

S.    7. 


s.  23. 
s.  24. 
s.  25. 
s.  26. 
s.    27. 

The  effect  of  these  sections  is  given  in  the  articles  above 
referred  to  by  not  confining  them  to  proceedings  under  'the 
Go.mmon-Law    Procedure    Act,    1854. 

The   rest   of   the  Act   refers   to   other  subjects. 

8. 
31    &    32    Vict.   c.    37    (25th   June,    1868,   6   sections): — 
S,    1.      Short   title. 

S.  2.     Certain  documents  may  he  proved  in  particular  ways. 

(Art.  83,  and  for  schedule  referred  to  see  note  to  the  article.) 

S.   :'..      The  Act  to  he  in  force  in  the  colonies.      (Article  83.) 

S.     l.      Punishment    of    forgery.       (Omitted    as    forming   part 

of  the  (  !riminal  Law.) 


EVIDENCE.  957 


S.  5.  Interpretation  clauses  embodied  (where  necessary) 
in    article    83. 

S.  6.  Act  to  be  cumulative  on  Common  Law.  (Implied 
in   article   73.) 

9. 

32  &   33    Vict.   c.    68    (9th    August,   1869,   6   sections): — 

S.  1.  Repeals  part  of  14  &  15  Vict.  c.  99,  s.  4,  and  part 
of  16  &  17  Vict.  c.  83,  s.  2.  (The  effect  of  this  repeal  is  given 
in    article   109;    and   see    Note   XLI.) 

S.  2.  Parties  competent  in  actions  for  breach  of  promise 
of  marriage,  but  must  be  corroborated.  (See  articles  106 
and    121.) 

S.  3.  Husbands  and  wives  competent  in  proceedings  in 
consequence  of  adultery,  but  not  to  be  compelled  to  answer 
certain   questions.      (Article   109.) 

S.  4.  Atheists  rendered  competent  witnesses.  (Articles 
106   and   123.) 

S.  5.     Short  title. 

S.    6.      Act   does  not  extend   to   Scotland. 

10. 

33  &    34    Vict.    c.    19    (9th    August,   1870,    3    sections): — 

S.  1.  Recites  doubts  as  to  meaning  of  "Court"  and  "Judge" 
in  s.  4  of  32  &  33  Vict.  c.  68,  and  defines  the  meaning  of 
those  words.  (The  effect  of  this  provision  is  given  in  the 
definitions  of  "Court"  and  "Judge"  in  article  1,  and  in  s.  125.) 

S.    2.      Short   title. 

S.   '■'.     Act  does  not  extend  to  Scotland. 

These  are  the  only  Acts  which  deal  with  the  Law  of  Evi- 
dence  as  I  have  denned  it.  It  will  be  observed  that  they 
relate  to  three  subjects  only — the  competency  of  witnesses, 
the  proof  of  certain  classes  of  documents,  and  certain  de- 
tails in  the  practice  of  examining  witnesses.  These  details 
are  provided  for  twice  over,  namely,  once  in  17  &  18  Vict.  c. 
125,  ss.  22-27,  both  inclusive,  which  concern  civil  proceedings 
only;  and  again  in  28  Vict.  c.  18,  ss.  3-8,  which  re-enact  these 
provisions    In    illation    to   proceedings  of  every  kind. 

Thus,  when  the  Statute  Law  upon  the  subject  of  Evidence 
is  sifted  and  put  In  Its  proper  place  as  part  of  the  general 
system,  it  appears  to  occupy  a  very  subordinate  position  in 
it.  The  ten  statutes  abo\  e  mentioned  are  the  only  ones 
which  really  form  part  of  the  Law  of  Evidence,  and  their 
effect  Is  fully  given  in  twenty'  articles  of  the  Digest,  some 
of   which    contain   other  matter  besides. 

>1,  49,  52.  58,  72,  79,  80,  81,  83,  84,  106,  108,  109,  120,  121, 
123.    125,    131,    132,    133. 


INDEX. 


INDEX.  961 


INDEX. 


Page 
ABANDONMENT — Declaration  on  leaving  as  evidence 

of  intent    85 

Parol  proof  of  abandonment  of  contract 651 

Subsequent  conduct  showing  intent  to  abandon  wife  69 

ABBREVIATIONS— Judicial  notice  of   493 

ABORTION— Declarations    of   victim 43 

Recent  intercourse  provable  to  show  intent 61 

Other  similar  acts   66 

Dying  declaration    240 

ABSENCE — Presumption     of     death     from     long     ab- 
sence      725-729 

Of  defendant  as  affecting  competency  of  declaration 

of  conspirator   42 

ABSENT  WITNESS— Proof  of  former  testimony  of... 309 

ACCEPTANCE— Parol  proof  of   651 

ACCESS— Of  parents  as  proof  of  legitimacy 721-725 

ACCIDENTS— Relevancy  of  proof  of  other  accidents.  .127 

ACCOMPLICES— Corroboration    168,  834 

Declarations    42 

ACCOUNT  BOOKS— Entries  as  evidence    246 

Knowledge  of  maker   249 

Subect-matter    250 

— Cash  entries    251 

Day  books  and  ledgers   253 

Bank  books    254 

Sundry  books    254 

Completeness  necessary    255 

Time  of  making  entry   255 

Alterations     256 

Mutilations    256 

Authentication     256 

To  whom  available   260 

ACCOUNTING     FOR     ORIGINAL— Before     producing 

secondary   evidence    565 

ACCURACY— Testing  accuracy  of  witness 874 

ACKNOWLEDGMENT— Certificate  as  evidence 332-336 

ACQUIESCENCE— See  Estoppel. 
ACTS— See  Statutes. 

ACTS  OF  CONSPIRATORS— As  evidence   42 

After  completion  of  main  act 45 

Evidence  of  fact  of  conspiracy    49 

ADJUDICATION— Plea  of  former,  and  Evidence  of,  see 
Judgment. 


962  INDEX. 

Page 
ADMINISTRATORS — See  Executors  and  Administrators. 

Admission  by    188 

ADMISSION— Defined    168-172 

General   rule    169 

Judicial   admissions    173 

Admissions  in  pleadings   174 

Explanation  of  admissions    176 

Proof  and  effect  177 

By  strangers   205 

Without    preudice    208 

By  agents  and  persons  jointly  interested   190 

— As  part  of  transaction  192 

— Past  transactions   194 

— Authority    of   agent    197 

—Proof  and    effect 293 

Corporate   officers    198 

Public  officers    199 

Showing   knowledge    201 

Who   may   make,   on   behalf   of  others 178 

— Parties  of  record   179 

— Nominal  parties    180 

— Interested  parties    180 

—Privies    181 

— Grantor  after   conveyance    182 

— Grantor  in  possession  after  conveyance 184 

— Seller  of  personalty 185 

— Ancestor    186 

—Insured    " 187 

— Guardian    or    Trustee    188 

— Administrator    188 

— Attorneys'    •. 199 

— Principal  and  surety  200 

—Partners    202 

—Joint  adventurers  202 

ADVERSE  WITNESS— Cross-examination,  see  Witnesses. 
ADVICE — Of  attorney,   pastor  or  physician,  see  Privi- 
leged  Communications. 
ADULTERY — Evidence  of  other  acts  of  intercourse. 66,  146 

Corroboration  of  wife    6 

Relevancy   of   proof   of   adultery   in   prosecution   for 

murder    67 

AFFIDAVITS— As  hearsay  164,  165 

Oral  evidence  given  by 851 

AFFINITY — Relevancy  of  evidence  of  relationship 66 

AGE— As  affecting  competency  of  witness 777,  781 

Provable    by   opinions    ™° 

Proof  by  declarations    •  •  •  .-«*£ 

Proof  by  hearsay  lb6> lbt) 


INDEX.  963 

AGENCY— 

Admissions   by  agents 190 

— As  part  of  transaction 193 

— Past  transactions  and  events 194 

— Authority  of  agent   197 

— Of   corporations    198 

—Attorneys    199 

Estoppel  of  agent  769 

Relevancy  of  proof  that  agent  acted  as  such  on  other 

occasions     154, 157 

AGRICULTURE— Proof      of      agricultural      nature      of 

land    119,121 

Valuation  of  damaged  crop 131 

Valuation   of  grass 133 

ALIBI— Burden  of  proof   701 

ALMANAC— See  Time. 

ALTERATION— Of   entries   in   account   books 256 

Parol  proof  of    651 

AMBASSADORS — Certificate  under  official  seal  as  evi- 
dence      326 

AMBIGUITY— Oral   evidence   to   explain 681-683 

ANCESTOR — Declarations  and  admissions  by 186 

ANCIENT   DOCUMENTS— As  evidence    281 

Presumption  as  to  execution  and  authority  to  eexcute.631 
Presumption  as  to  delivery,  custody  and  alteration.  .633 

ANGUISH— Exclamations  of  pain   303 

ANIMALS — Vicious   nature    of   horse    not    provable    by 

other  act 147 

Previous  habits  of  dog  irrelevant  in  action  for  bite.  .135 
ANIMUS— See   Motive. 
ANNUITY  TABLES— Showing  probable  duration  of  life.342 

ANTE    LITEM    MOTAM— Declarations 294 

ANTICIPATORY   IMPEACHMENT— Of  witness    915 

APPREHENSION  OF  DEATH— See  Dying  Declarations. 

ARMY — Certificate   of  discharge   as   hearsay 161 

ARREST — Resisting,  as  evidence  of  guilt 71 

ARTESIAN  WELL — Showing  defective  construction.  .  .122 

ART — Books  of  art  as  evidence 281,  339 

Judicial  notice  of  matters  of  art 494 

Subject  of  expert  testimony 411 

ASSAULT  AND  BATTERY— Evidence  of  preparation..   65 

ASSESSORS — Books  of  assessor  as   evidence 323 

ASSIGNEE — Bound   by  judgment    380 

ATHEIST — Competency  as  witness    781 

ATTESTING   WITNESS— Proof   of  execution   of  docu- 
ment  by    545-551 

ATTORNEYS— Admissions   by    199 

AUTHENTICATION— Of  entries  in  account  books 256 

BAD   CHARACTER— See   Character. 


964  INDEX. 

Page 

Of  accused   456 

BAD  FAITH— Parol  proof  of   647 

BAILMENT— Estoppel  of  bailee    766 

BANK  BOOKS— Copies  of  entries  in 345 

Bank  not  compelled  to  produce 346 

Entries  as  evidence    254 

BAPTISM— Record   as    evidence    336 

BASTARDS— Corroboration  of  prosecutrix    838 

Presumption  of  legitimacy 721 

Proof  of  legitimacy  by  declarations   292 

BAWDY  HOUSE— See  Disorderly  House. 

BELIEF — Effect  on  competency  of  witness 781 

BERTILLION  PHOTOGRAPH— To  identify  accused. .  .109 
BEHAVIOR— See  Demeanor. 

BEST    EVIDENCE— Defined    541 

BIBLE  ENTRIES— As  evidence   289 

BILLS  AND  NOTES— Presumption  that  note  was  pre- 
sented during  business  hours 156 

BODILY  FEELING— Declarations  showing    299 

Relevancy  of  evidence  showing   137 

BOOKS — Legal  and  scientific  books  as  evidence 411 

Reading  scientific  works  on  examination  of  expert.. 432 

— To  contradict  expert    433 

BOOKS  OF  ACCOUNT— See  Account  Books. 

BOUNDARIES— Declarations   relating  to    276-279 

Declarations  of  surveyor  as  hearsay 165 

BREACH  OF  PROMISE— Corroboration  of  plaintiff 834 

BRIBERY — Evidence  showing  motive   60 

BRIDGES — Evidence  relevant  to  show  defective  condi- 
tion     135 

BURDEN  OF  PROOF— Civil  cases 696 

Criminal  cases    699 

Proof  of  negative    700 

Alibi    701 

Insanity 702 

Presumption  of  innocence    705 

Proof  of  commission  of  crime  in  civil  cases 706 

On  whom  burden  lies  708 

Shifting  of  burden    710,  715 

Proof  of  particular  facts 713 

Preliminary   facts    716 

Fiduciary  relations    718 

— Attoreny  and  client    719 

To  prove  confession   227 

BURGLARY— Possession  of  tools   71 

BUSINESS— See  Course  of  Business. 

BYSTANDERS— Proof  of  former  testimony  by 315 

CARLISLE  TABLES— As  evidence  of  probable  duration 

of  life    342 


i 


INDEX.  965 

Page 

CASH  ENTRIES— As  evidence    251 

CAUTION — Prerequisite  to  admission  of  confession 232 

CELEBRATION— Of  marriage,  see  Marriage. 

CENSUS— Census  roll  as  evidence    326 

CERTIFICATES— As  evidence    326 

Of  acknowledgment   332-336 

Of  discharge   from   army 161 

CERTIFIED  COPIES— As  evidence    581,605,622 

CHANGE— Presumption    of    continuity 737 

CHARACTER— 

In  civil  actions   446 

— As  an  issue  in  the  case 499 

— Malicious  prosecution    450 

— Actions  for  libel    450 

In  criminal  cases  453 

— Good  character  of  defendant    453 

— Bad  character  of  defendant    456 

— Rebuttal  by  state   457 

— Character  of  victim  of  homicide   459 

— Keeper  of  disorderly  house   461 

— Character  of  complainant  in  sexual  crimes 462 

— Character  as  element  of  crime   463 

How  shown    465 

— Specific  acts    467 

— Opinion     467 

Character  as  affecting  damages   468 

Of  witness    878 

CHARTS— As  evidence    281 

CHILDREN— See  age,  Baptism. 

Admissions  of  children  binding  parent   199 

Declarations  of  parents  to  prove  parentage 292 

Competency  as   witnesses    777, 781 

Presumption   of  legitimacy    721 

CHURCH  REGISTERS— As  evidence  336 

CIRCUMSTANTIAL   EVIDENCE— Denned    4,     5 

CITY  COUNCIL — Records  of  proceedings  as  evidence.  .328 
CLERGYMAN — Confidential  communications  of  parish- 
ioners      816 

CLIENTS — Confidential  communications  to  attorney.803-815 
CLIMATE — Proof  of  temperature  by  records  of  weather 

bureau    112 

CO-DEFENDANT— Confession  bv    213 

COLLATERAL  AGREEMENT— Parol  proof  of 652 

COLLATERAL  FACT— Evidence  to  prove  irrelevant..   23 

COLLUSION — Impeaching  judgment  for  388 

COMMISSIONS— See  Depositions. 

COMMON    CALAMITY— Presumption    of    survivorship 

of   persons    perishing   in 730 

COMMON  KNOWLEDGE— Judicial  notice  of  matters  of.495 


966  INDEX. 

Page 
COMMON  REPUTE— See  Character. 

As  hearsay    166 

COMMUNICATIONS — See  Privileged  Communications. 

COMPARISOSNS— Of  handwriting    436 

COMPETENCY — Of  acts   and   delcarations   of  conspir- 
ators        42 

Of  declarant  making  dying  declaration    243 

Of  evidence,  see  Relevancy. 
Of  witnesses,  see  Witnesses. 

COMPETENT  EVIDENCE— Defined   6 

COMPLAINTS— Of  victim  as  relevant  proof  of  offense.   80 

COMPLETENESS — Of  entries  in  account  books 255 

COMPROMISE— Offer  of  compromise  inadmissible    ...207 

CONCEALMENT— As  evidence  of  guilt 76 

CONCLUSIONS  OF  WITNESS— See  Opinion  Evidence. 

Making  dving   declaration    240 

CONCLUSIVE   EVIDENCE— Defined    6 

Judgment  as    347 

CONCLUSIVE  PROOF— Defined    15 

CONCLUSIVE  PRESUMPTION— See  Presumptions. 

CONDITION  PRECEDENT— Parol  proof  of    657 

CONDUCT— As  evidence  of  guilt   72,  73 

Estoppel  by    738 

CONFEDERATES— In  crime,  see  Conspiracy. 

CONFESSION— Defined    209-212 

Cautioning  accused   : 232 

Statutes   construed    212 

Of  co-defendants    213 

Corroboration    213 

Proof  of  corpus  delicti  prerequisite  214 

Burden  of  proof  216 

Preliminary  questions    217,  227 

Proof    217 

Weight  and  sufficiency  218 

Inducement     218,  223 

Threat  or  promise  218,  224 

Voluntary   character  218-221 

Involuntary   character    223 

Third    degree    225 

Discovery  of  evidence  through  226 

Upon  promise  of  secrecy 231 

Obtained  by  deception  231 

Obtained  when  drunk 231 

Without    warning    231 

Talking  in   sleep    231,  232 

Upon  oath  228-230 

— On  preliminary  examination   229 

—On  former  trial    229 

— At  inquest    230 


INDEX.  967 

Page 

CONFESSION— (Continued). 

— Before  grand  jury   230 

Warning  accused   231 

CONFIDENTIAL  COMMUNICATIONS— See  Privileged 
Communications. 

CONFRONTING  ACCUSED— Rule  inapplicable  to  dying 

declaration    234 

CONGRESS— Judicial  notice  of  proceedings 481 

CONNECTED     FACTS— Irrelevancy     of     unconnected 

facts     115-154 

CONSCIOUSNESS   OF  IMMINENT  DEATH— Prerequi- 
site to  dying  declaration    236 

CONSIDERATION— Want    or    failure    of    consideration 

provable  by  parol    649 

CONSPIRACY — Acts  and  declarations  of  conspirators. 42-50 
Confessions   of   conspirators    213 

CONSTRUCTION— Aider  by  parol  evidence  651-688 

Of  document,  defined   672 

CONSULS — Certificate  of  vice-consul  as  evidence 326 

CONTEMPORANEOUS     AGREEMENT— Provable     by 

parol     652 

CONTINUING  FACT— Presumption  of    737 

CONTRACTS— See   Documentary   Evidence;    Oral   Evi- 
dence. 

CONTRADICTION— Of  dying  declaration   244 

Of  witness    878 

Inconsistent   statements    880,  889 

Own  witness   882 

CONVERSATION— See  Declarations. 

COPIES— As    evidence    581,  605-613 

Printed  copies   622 

Of  entries  in  bank  books   345 

CORONER — Verdict  of  coroner's  jury  as  hearsay 161 

CORPORATIONS— Corporate    books    and    records    as 

evidence    329 

Judicial  notice  of  acts  of 489 

CORPUS  DELICTI— Proof  prerequisite  to  admission  of 
confession    214 

CORRESPONDENCE— See   Letters. 

CORROBORATION— Of  confession   213 

By  hearsay   164 

When  required    834 

Accomplice     834 

— By  another  accomplice  837 

Divorce  case   838 

Perjury  or  bribery  838,  839 

Prosecutrix  in  sexual  offense 838 

Claimant  against  estate 846 

CORROBORATIVE    EVIDENCE— Defined    ...  6 


968  INDEX. 

COST — Original  cost  as  proof  of  value 131 

COUNTIES — Record  of  proceedings  of  supervisors 328 

COURSE      OF      BUSINESS— Relevancy     of     evidence 

showing    154 

Presumption  of  regularity  of 733 

CREDIBILITY— Testing   credibility   of  witness 874 

CROP— See  Agriculture. 

Valuation   of    131, 133 

CROSS-EXAMINATION— Scope    857 

Collateral   inquiry    860 

Extent    862 

Extraneous  matters   862 

Discretion    of    court 863 

Re-cross  examination    864 

Leading  questions    865 

Questions  permitted   869 

CUMULATIVE  EVIDENCE— Defined   7 

CUSTOMS  AND  USAGE— Parol  proof  of 664 

Custom  in  dealing  with  others  irrelevant 135 

Established  custom  as  negativing  negligent  habit 156 

Evidence   relevant   to   establish 54 

DAMAGES — Amount  provable  by  opinion  evidence ....  401 

Evidence  relevant  to  prove  amount  of 130-135 

Physical  examination  of  plaintiff 526-529 

DATES— See  Time. 

DAY  BOOKS— See  Account  Books. 

DEAF  MUTE— As  witness   781 

DEATH — Presumed  from  long  absence  725 

Proof  by  declarations  or  hearsay 291 

Proof  of  probable  duration  of  life 342 

Of  witness  as  ground  for  proving  former  testimony. 309 
Sense  of  impending  death  prerequisite  to  dying  dec- 
laration     236 

DECEDENT— Declarations  of,  to  prove  identity 110 

Relevancy  of  statements  by  persons  since  deceased.  .233 

DECLARATIONS — As  to  public  and  general  rights  or 

custom    274 

As  to  boundaries   276 

As  to  ownership 279 

As  to  pedigree    283 

As  to  legitimacy   292 

Against  interest  261 

By  testator  as  to  contents  of  will 269 

— Destroyed  or  revoked  will 270 

— Showing  undue  influence  271 

Dying   declarations    233-244 

In  course  of  business  or  personal  duty 245 

Made  in  person's  presence    97 

Of  persons  in  possession  of  personal  property 90 


INDEX.  969 

Page 
DECLARATIONS— (Continued) . 

Of  persons  in  possession  of  land 88 

To  prove  making  or  performance  of  contracts 86 

Of  decedent  to  prove  identity 110 

Of  conspirators    42 

Narrative   of   conspirator    49 

Of  persons  since  deceased   233 

DEEDS— Ancient   deeds    281 

Record  or  copy  of  record  as  evidence 329 

DEMEANOR— As  evidence  of  guilt 72,  73 

DEMONSTRATIVE   EVIDENCE— Defined    8 

Objects  constituting    530 

DEPOSITIONS— Dying    declarations    232 

Admissibility     939 

Taken  to  perpetuate  testimony 947 

Taken  under  mercbant  shipping  act 949 

DESIGN— See  Intent. 

Relevancy  of  proof  of  facts  showing 57,  69 

DESIRE  FOR  MONEY— Relevancy  of  evidence  of,  in 

murder   cases    63 

DETECTIVE— Admissibility  of  confession  obtained  by, 

through    deception     231 

DIRECT  EVIDENCE— Denned    8 

DISCOVERY — Discovery    of   evidence    through    confes- 
sion     225 

Physical  examination  of  injured  person 526-529 

DISCRETION  OF  COURT— As  to  examination  of  wit- 
nesses      877 

DISORDERLY  HOUSE— Admissibility  of  reputation  of 

house    461 

DIVORCE— Acts  of  cruelty  after  suit 61 

DOCTORS— See  Opinion  Evidence. 

Communications  between  doctor  and  patient 815 

DOCUMENT— Defined    2 

Ancient  documents    281 

Relevancy  of  evidence  to  prove  genuineness  of  doc- 
uments produced    102 

DOCUMENTARY  EVIDENCE— In  general   533 

ilateral  matters    535 

Matters  required  to  be  written   536 

Matters  covered  by  writing  537 

Information  derived  from  writing 538 

Judgments  and  judicial  records 539 

Payment  of  money   540 

Testimony  of  one  having  actual  knowledge  of  facts 

recorded    540 

Primary  evidence    541 

Proof  of  execution    544 

— By  attesting  witness   545-551 


970  INDEX. 

Page 
DOCUMENTARY   EVIDENCE— (Continued). 

Acknowledgment  of  instrument   552 

Denial  of  execution  by  attesting  witness 558 

Proof  of  written  instruments    559 

Secondary  evidence  of  contents 561-564 

— Accounting  for  original   565 

— Original  in  hands  of  adversary 566 

— Original  in  hands  of  stranger 567 

— Original  out  of  jurisdiction   568 

— Destruction  or  loss  and  search 571 

— Diligence    in    search 574 

— Original  not  movable 576 

— Original  a  public  document 577 

— Record  of  instrument  577 

— Certified   copies    581 

Notice  to  produce   584 

— Original  in  possession  of  defendant 588 

— When  writing  itself  is  notice 589 

— Action  presuming  possession  of  adverse  party.... 589 

Proof  of  public  documents 591 

— Judicial  records   591 

— Production  of  document 594 

— Examined  copies    597 

— Federal  and  state  records 600 

— Exemplifications    603 

— Copies  equivalent  to  exemplifications 604 

— Certified   copies 605 

—Authority  to  certify  608-610 

— Manner  of  certifying    611 

— Certificate   of  particular   facts 612 

— Registers  and  documents  certified 613 

Foreign  records  and  public  documents 616 

— Judicial  records   617 

— Miscellaneous  records    620 

Officially  printed  copies    622 

—Statutes 622 

— State  papers    623 

— Proclamations     623 

— Foreign    laws    625 

Presumption  as  to  documents 626 

■ — Date  and  place  of  execution 627 

—Stamps    628 

— Seal  and  delivery  of  deed 628 

— Execution   630 

— Ancient   deeds    631 

— Alterations     •. 633 

Exclusion  of  oral  by  documentary  evidence 637 

— Parol  evidence  rule    641 

— Matters  provable  by  parol,  see  Oral  Evidence. 


INDEX.  971 

DOCUMENTARY  EVIDENCE— (Continued) . 

Census  records    326 

Licenses    326 

Certificates    326 

Legislative  journals    327 

Proceedings   of  city  council    328 

Entries  in  account  books  247-258 

Public  documents    317 

State    Papers    318 

Offilial  registers   319 

Surveys    322 

Assessor's  books    323 

Inquests  of  lunacy  or  death 326 

Corporate  books  and  records 329 

Registers  of  conveyances   329 

Certificate  of  acknowledgment 332 

— Registration     334 

—Defective    336 

Church  register    336 

Histories,  maps  and  charts 338 

Unauthorized  records   337 

Scientific   treatises    339 

Medical  works    339 

Private   maps    341 

Market  reports   341 

Mortality  tables   342 

Mercantile    reports    344 

Rules  and  time  tables    344 

Time  tables    344 

Duty  to  introduce  document  demanded  and  produced 

on   notice    937 

Refusal   to   produce   document   demanded   bars   right 

to  introduce  it 938 

Privileged  documents    821-823 

DRUNKARDS— Effect  of  intoxication  on   admissibility 

of    confession    231,  232 

DURATION  OF  LIFE— Proof  of  probable  duration 342 

DURESS — Admissions  made  under  duress 207 

DYING  DECLARATIONS— Discrediting    922 

Competency  of  declarant    243 

Admissibility     233 

Consciousness  of  impending  death    236 

Expectation  or  hope  of  recovery 23S 

Manner  and   form    241,  i 

Time    intervening    before    death 238 

Information   of   physician    238 

Ratification  of  former  declaration 239 

Subject-mutter  and   relevancy    239 

Prosecutions  in  which  admissible 


972  INDEX. 

DYING  DECLARATIONS— (Continued). 

Questions     242 

Persons  as  to  whom  admissible 243 

Preliminary  inquiry    243 

Contradiction  and  impeachment 244 

Proof  of  declaration    244 

Weight  as  evidence    244 

Impeachment    244 

EMERGENCY — Evidence  of  acts   of  others  in   similar 

emergency    134 

EMOTION — Relevancy  of  declaration  showing 299 

ENTRAPMENT — Competency    of    confession   obtained 

by  detective  through  deception 231 

ENTRIES   IN   BOOKS— Admissibility    246 

ESCAPE  OF  ACCUSED— Relevancy  of  proof  of 75 

ESTOPPEL— By   judgment    355 

Effect  of  judgment  not  pleaded  as  estoppel 43 

By  conduct    738 

By  neglecting  duty   , 751 

Of  tenant   756 

— Exceptions  to  the  rule 759 

Of  licensee  762 

Of   vendee    762 

Of  acceptor  of  bill 765,  770 

Of   bailee    766,  767 

Of   agent    769 

EVIDENCE— Defined     2,     3 

EXAMINATION  OP  WITNESSES— In  chief 852 

Questions  by  court   854 

Exclusion  of  witness    856 

Recalling  witnesses    857 

Cross-examination    857 

— Collateral   inquiry    865 

—Extent     862 

Re-examination    864 

Leading  questions   865 

— On    direct    examination 867 

— Discretion  of  court   868 

Questions    on    cross-examination 871 

— Impeachment     871 

- — Testing  accuracy   874 

— Showing   bias    876 

EXCLUDING  WITNESS— During  trial    856 

EXECUTORS  AND  ADMINISTRATORS— Admission  by.188 

Administration  of  estate  of  living  person 730 

EXEMPLIFICATIONS— As   evidence    603 

EXERCISE  OF  RIGHT— As  relevant  evidence  of  right 

to  property   52 

EXPECTANCY— Carlisle  tables  as  evidence  of 342 


INDEX.  973 

EXPECTATION  OF  DEATH  OR  RECOVERY— Of  per- 
son making  dying  declaration   238 

EXPERIMENTS— And  tests  as  evidence 135 

EXPERT    TESTIMONY— See    Opinion    Evidence. 

EXPLANATIONS— Relevancy    of    80 

Facts  necessary  to  explain  or  introduce  relevant  facts 

as    relevant    102 

Of  admissions   176 

EXPRESSION  OF  PAIN— See  Res  Gestae. 

FABRICATING  TESTIMONY— As  evidence  of  guilt 78 

FACT— Defined    2 

Relevancy  of  facts  forming  part  of  same  transaction. 27-41 

FACT  OF  CONSPIRACY— Proof  of 49 

FACTS  IN  ISSUE— Phrase  defined  16 

Relevancy     21 

FAMILY   HISTORY— Proof  of    290 

FAMILY  RESEMBLANCES— Provable  by  opinions. ..  .406 

FEELING— Declarations    showing    299 

FINANCIAL     RATING — Mercantile     reports     as     evi- 
dence of    344 

FIRES — Relevancy  of  evidence  of  other  fires 128 

FLIGHT  OF  ACCUSED— Relevancy  of  proof  of 75 

FOOTPRINTS— As    evidence     109,  111 

FOREIGN  JUDGMENT— As  evidence    390 

Full  faith  and  credit 390 

Want  of  jurisdiction   390 

Fraud     391 

FOREIGN  LAWS— Judicial   notice  of 478 

Provable   by  opinion   evidence 403 

Provable  by  experts   411 

FORMAL  REQUISITES— Of  dying  declarations    241 

FORMER   CONVICTION— As   proof   of   guilt   or  guilty 

knowledge    137,  138 

FORMER  TESTIMONY— Death  or  absence  of  witness.  .309 

Identity  of  parties  ■ 310 

Identitl  of  issues   312 

Preliminary  proof   312 

Mode  of  proving  313 

Relevancy  of  evidence  given  in  former  trial 306 

Nature  of  proceeding   308 

FOUNDATION— See  Laying  Foundation. 

FRAUD — Effect    on    judgment    as    evidence    and    right 

to  prove  fraud  in  judgment   388 

— Foreign  judgment    392 

In   obtaining   confession    231 

Other  acts  of  fraud  relevant  to  show  system 152 

Provable  by  oral  evidence 645 

GEOGRAPHY — Judicial  notice  of  geographical  facts.. 491 
GIFTS — Declarations  showing  intent  to  make 85,  86 


974  INDEX. 

GOOD  CHARACTER— See  Character. 

Of  accused   453 

GOOD  FAITH— Relevancy  of  evidence  showing 137 

GOVERNMENT — Judicial  notice  of  governmental  mat- 
ters      484 

— Political  subdivisions    485 

Privilege  of  witness  to  refuse  to  disclose  state  secrets. 802 

GRAFTING — Evidence  that  others  contributed    152 

GRANTORS— Admissions  by  181,  182 

GUARDIANS— Admission    by    188 

HABIT — Relevancy   of   evidence   of 54 

Of  vicious  dog   135 

HANDWRITING — Proof  by  experts    434-436 

Standard    of   comparison    437 

HEARSAY— In  general    159 

Defined    9 

Complaints  of  inured  person  160 

Contents  of  writing  161, 162 

Certificate  of  discharge  from  army • 161 

Verdict  of  coroner's  jury   161 

To  prove  age    163,  166 

To    prove    ownership    163 

To  prove  partnership   163, 164 

Affidavits   as    164,  165 

Newspaper    article    164 

Telegrams 164 

Telephone  conversations   164 

Testimony   at   inquest    164 

Death  provable  by    165 

Declarations  of  third  party   165 

Boundaries  not  provable  by  declaration  of  surveyor.  165 

Letter  as    165 

Reputation     166 

Rumors     166 

HEARSAY  EVIDENCE— Defined   9 

HISTORICAL   EVENTS— Proof   of    281 

Judicial  notice  of    491 

HISTORICAL  WORKS— As  evidence  339 

HOMICIDE — Activities  of  accused    64 

Relevancy  of  proof  of  adultery  or  meretricious  rela- 
tions       67 

Subsequent  conduct  of  accused   71 

Threats  and  quarrels   65 

Character  of  deceased   459 

Dying  declarations  as  evidence  of  cause  of  death.233-244 

Threats  by  deceased    69 

Verdict  of  coroner's  jury  as  hearsay  161 

HOPE   OF   RECOVERY — As  affecting  admissibility   of 

dying   declaration 238 


INDEX.  975 

Page 

HUSBAND  AND   WIFE— Admissions   by 199 

As   witnesses    785-794 

Confidential   communications   between    796-799 

HYPOTHETICAL  QUESTIONS— To  experts   423 

IDENTITY — Declarations   showing    293 

Presumption   of  identity  of   person    from   identity   of 

names     108 

Relevancy  of  evidence  establishing    108 

IDENTITY  OF  ISSUE — Relevancy  of  evidence  to  estab- 
lish      102 

IMBICILITY— See  Insanity. 
IMPEACHMENT— See  contradiction. 

Of  witness    871-922 

IMPENDING   DEATH— Sense   of   imminent    death    pre- 
requisite to  dying  declaration   236 

IMPROPER  EVIDENCE— Effect  of  admission  of 951 

INCEST — Evidence  of  other  acts  of  intercourse 66,  146 

INCOMPETENT    EVIDENCE— Defined    10 

Effect  of  admission  of   951 

INCRIMINATING    TESTIMONY— Witness    may    refuse 

to  give    823-833 

INDICTMENT— As    impeachment     904 

INDUCEMENTS— Confession    obtained    by 219-223 

INNOCENCE — Presumption    of     705 

INQUEST — Statements  of  witness  at.  as  hearsay 164 

INQUISITORIAL    CONFESSION— Confession   obtained 

by  third  degree  methods   225 

INSANITY— Burden  of  proving    702 

Presumed  to  continue    737 

Competency  of  insane  witness 779 

Opinion   evidence   to   prove    399 

INSPECTION— See  Physical  Examination. 

Of  entries  in  books  of  bank 346 

INTENTION— Of.  testator  proved  by  his  declaration.  .  .273 

Proof   by  other   similar   transactions 141 

Relevancy  of  acts   showing    137 

Relevancv  of  proof  of  facts  showing 57.  61) 

INTERLINEATION— See  Alteration. 

INTOXICATION— Effect  on  confession    232 

INVOLUNTARY  CONFESSION  -Obtained  by  promises. 

threats  or  third  degree   methods    223-225 

JOINT   ADVENTURERS— Admissions    by    201 

JOURNAL  ENTRIES— See  Account  Books. 
JOURNALS — Legislative   journals    as    prima    facie   evi- 
dence   . 327 

JUDGE— Defined    1 

Judicial  notice  of  acts  of  486 

JUDGMENT— Defined     347 

Conclusive  proof  of  legal  effect   347 


976  INDEX. 

Page 
JUDGMENT— (Continued). 

Legal  effect   348 

Conclusive   as   between   parties  and   privies 352 

Conclusiveness     354 

Nature  of  action  or  decision   355 

Nature  of  decision    356 

Estoppel  by   355 

Scope  of  inquiry    357 

Matters  concluded   357 

Matters  actually  determined    359 

Matters  which  might  have  been  litigated 360 

Matters  determined  by  general  finding   363 

Different  causes  of  action    363 

Defenses    neglected     363 

On  part  of  cause  of  action  364 

Grounds  of  judgment    365 

Questions  for  court    366 

Statements  of  fact  in 366 

Not  pleaded  as  estoppel   368 

Must  be  pleaded  369 

Irrelevant  as  to  strangers  371 

Conclusiveness  of  facts  inferred  from  udgment 372 

Persons  concluded   by    375 

— Parties  and  privies   376 

— Representatives    378 

— Government  and  officers   378 

— Persons  not  parties    379 

— Citizens  successively  suing    380 

— Assignees     ■ 380 

— Principal  and   surety    380 

— Prior  mortgagee   380,  382 

— Prior  grantee  or  contractor   380 

— Subsequent   grantee    381 

—Trustee  and   beneficiary    381.  382 

— Landlord  and   tenant    382 

— Administrator  and  heir   382 

— Corporations  and  stockholders    383 

— Judicial   officers    383 

— Fraud,    collusion     or    want    of    jurisdiction     prov- 
able     384-389 

Foreign  judgment    390 

—Full  faith  and  credit 390 

— Want  of  jurisdiction   390 

—Fraud     392 

JUDICIAL  ADMISSIONS— In  general    173 

By  attorney    173 

In    pleadings    174 

JUDICIAL    NOTICE— Facts   noticed    472-478 

Admitted  facts    503,  505 


INDEX!  977 

Page 
JUDICIAL  NOTICE— (Continued). 

Foreign  laws  and  relations 478 

Domestic  laws  and  treaties    479 

Federal  laws  and  treaties    479 

Legislative    proceedings    481 

City  ordinances    482 

Laws  of  sister  state   482 

Governmental    matters    484 

Political  subdivisions   485 

Powers  and  duties  of  officers    485 

Official    acts     485 

Judicial  acts  and  proceedings   486 

Important  corporations    489 

Occupations 490 

Customs  and  usages   490 

Historical   facts 491 

Statistical  facts    491 

Geographical   facts    491 

Words  and  abbreviations    493 

Drugs  and   poisons    493 

Art  and  science   494 

Skill     494 

Time     495 

Matters   commonly  known    495 

Method  of  acquiring   500 

JURISDICTION— 

Impeaching  judgment  for  want  of 384 

— Foreign  judgment    391 

.J TRY — Competency  of  jurors  as  witnesses.  . : 805 

KNOWLEDGE — Judicial  notice  of  matters  of  common 

knowledge    495 

Other  transactions  as  proving  14r> 

Showing   knowledge  as   prerequisite   to  admission   of 

proof  of  motive  68 

LANDLORD  AND  TENANT— Estoppel  of  tenant    75« 

Judgment    against   tenant   as   evidence   against    land- 
Ion!     382 

LANGUAGE     Judicial  notice  of  English  language 493 

LARCENY     Possession    of    stolen    property L37 

LATENT   AMBIGUITY— Orol  evidence  to  explain 

LAYING     FOUNDATION— For    impeachment    of    Wit- 
ness     85G 

For  introduction   of  dying  declaration jr. 

For   Introduction   of  evidence   given    in    former   pro- 
ceeding     312 

For  proof  of  confession    LM7,  227 

Prerequisite  to  Introduction  of  dying  declaration ....  243 

LEADING  QUESTIONS    On  cross-examination   365 

On  direct  examination    867 


978  INDEX. 

Page 
LEADING  QUESTIONS— (Continued). 

Discretion  of  court   868 

LEDGERS— See  Account  Books. 
LEGISLATIVE  ACT— See  Statutes. 

Recitals  in .  as  evidence 317 

LEGISLATIVE  JOURNALS— Admissible  as  prima  facie 

evidence  of  recitals    327 

LEGISLATURE— Judicial  notice  of  proceedings  of 481 

LEGITIMACY— Declarations   showing    292 

Presumption  of  721 

LETTER— As  hearsay   165 

Presumption  of  delivery  of  letter  mailed 155 

LETTERS  ROGATORY— See   Depositions. 
LIBEL   AND -SLANDER— Relevancy    of   proof    of    sub- 
sequent  repetition   of  defamatory  words 67 

Good  character  of  defendant  not  provable 450 

Other  similar  words  provable  to   show  malice 147 

LICENSES— Estoppel   of  licensee 762 

Marriage  license  as  evidence  327 

LIFE— Presumptions  relating  to 725,  730 

LIFE  TABLES— See  Carlisle  Tables. 

LOCATION— See  Place. 

LOCOMOTIVES— See  Fires. 

LOST   INSTRUMENT— Proof  of    571 

Presumptions  in  favor  of  lost  grant 731 

LOST    WILL — Declarations     of    testator    as     to     con- 
tents     269-273 

MAIL — Presumption    of    delivery    of    mail    in    regular 

course    155,  157 

MALICE — Relevancy  of  evidence  showing 137 

MALICIOUS     PROSECUTION— Character    of     plaintiff 

provable    450 

MAPS— As  evidence  281 

Private    maps    341 

MARKET  REPORTS— As  evidence  341 

MARRIAGE— License  as  evidence   327 

Proof  by  declarations  of  decedent  291 

MASTER  AND  SERVANT— Proof  of  reasonable  value 

of  services    132 

Rules  of  master  as  evidence   344 

MEANING  OF  WORDS— Parol  evidence  to  explain.  .  .676 

MEDICAL  SCIENCE— Subject  of  expert  testimony 419 

MEDICAL  WORKS— As  evidence    339 

MEMORANDUM — Right  of  witness   to   use   to   refresh 

memory    923 

Requisites   of    928-935 

Made  under  direction  of  witness 928 

Made  by  others   929 

Use  in  evidence   934 


INDEX.  979 

MEMORY  OF  HEARERS— To  prove  former  testimony. 315 
MENTAL   CONDITION— Relevancy   of  evidence   show- 
ing   146 

Relevancy   of   declaration    showing 297-299 

MERCANTILE   REPORTS— As  evidence    344 

MERETRICIOUS  RELATIONS— Relevancy  of  proof  of  67 
MINES — Certificate  of  assayer  as  proof  of  values  of  ore. 161 
MINORS— See  Infants. 

MISTAKE— Parol   proof   of    647 

MONEY — Relevancy  of  evidency  of  possession  by  vic- 
tim or  desire  by  accused   63 

MORTALITY  TABLES— As  evidence  of  probable  dura- 
tion   of  life    342 

MOTIVE— See  Intent. 

Proof  by  other  similar  transactions    141 

Relevancy  of  proof  of  facts  supplying   57-  59 

MUNICIPALITIES— See  Cities. 

MUTILATIONS— Of  account  book  offered  in  evidence.  .256 

NAMES — Presumption  of  identity  of  persons  and  names. 108 

NARRATIVE— Of  conspirator   49 

NATIONALITY— Proof  by  hearsay    166 

Proof  by  reputation    166, 167 

NEGATIVE— Burden  of  proving    700 

NEGATIVE  EVIDENCE— Defined   10,  11 

NEGLIGENCE — Evidence   of   acts    of   others    {n   same 

emergency    134 

Other  accidents  or  injuries  irrelevant   127 

Other  acts  of  negligence   129 

Physical  examination  of  injured  person 526-529 

Repair  of  defective  appliance  as  evidence  of 73 

NEIGHBORING     CONDITIONS— Irrelevant     to     prove 

local  defect    135 

NEWSPAPER — Photos  and  articles  as  hearsay...' 164 

NOMINAL  PARTIES— Admissions  by   180 

NOTICE— To  produce  documents    584 

NUMBER  OF  WITNESSES— In  prosecution  for  treason.840 

Limiting    841 

In  prosecution  for  perjury 842 

OATHS  OF  WITNESSES— Necessity  845,  849 

By  whom  administered    846 

Form  of  oath    846,  847 

Waiver  of  irregularities    849 

OBSTRUCTION  OF  EVIDENCE— Relevancy  of  proof  of  78 

OFFICERS— Admissions    by    199 

Relevancy  of  evidence  to  show  that  person  held  office.154 

Presumption  that  officer  did   his  dutv 156 

OPINION  EVIDENCE— Generally  relevant    393 

Nature    of    394 

Grounds  for  admission  396 


980  INDEX. 

OPINION  EVIDENCE— (Continued). 

Sanity  or  insanity  399 

Value  and  amount  of  damages   401 

Foreign   law 403 

Ownership    404 

Miscellaneous  matters   405 

Source  of  knowledge    408 

Marriage,  opinion  as  to  existence  of 439 

Grounds  of  opinion  relevant    442 

— Grounds   of  expert  opinion    443 

Opinions  of  person  making  dying  declaration 240 

Expert   testimony    411 

— Science  and  art   411,  419 

— Grounds  of  admission    414 

— Qualifications  of  expert  414 

— Scope  of  examination 428 

— Testing  knowledge    428 

— Preliminary  questions    428 

— Facts  bearing  on  opinions  of  experts 430 

— Cross-examination     431 

— Reading  scientific  works  on  cross-examination 432 

— Handwriting   experts    433 

— Comparison    of   handwriting    436 

— Standard  of  comparison    437 

—Grounds  of  opinion   443 

— Hypothetical   questions    423 

— Basis   of  opinion    425 

ORAL  EVIDENCE— General  rule    507 

Must  be  direct   507 

Facts  seen   508 

— Diagrams  and  maps   509 

■ — Photographs 

— X-Ray   sciagraphs    513 

Facts    heard    514 

Telephone   conversation 515 

Language  interpreted  to  witness   516 

Source  of  knowledge    517 

Identification     520 

Opinion  of  witness 521 

Conclusions  and   impressions    524 

Intent  and  knowledge   524 

Excluded  by  documentary    637 

Parol  evidence  rule   641 

Matters  provable  by  parol   643 

— Writing  incomplete   644 

—Fraud     645 

—Mistake     647 

—Bad  faith .647 

—Illegality    647 


INDEX.  981 

ORAL  EVIDENCE— (Continued). 

— Want  or  failure  of  consideration 649 

— Delivery    650 

— Acceptance    651 

— Alterations  and  additions   651 

— Incapacity  to  contract   651 

— Effect  of  instrument 651 

— Abandonment  of  contract 651 

— Separate  oral  agreement    652 

— Constituting   condition   precedent    657 

— Subsequent  oral  agreement    661 

— Custom  or  usage   664 

— Legal   effect   not   intended 666 

— To  explain  legal  relation  667 

—Title  or  office    669 

— Collateral    matters    670 

— Explaining  ambiguity  672,  681 

— Meaning  of  words   676 

Scientific,  art  and  trade  terms 679 

Defective  and  unmeaning  phrases    680 

— Latent    ambiguity    682 

— Two  consistent  interpretations   683 

— Relation  of  words  to  facts 685 

— Extrinsic  facts    686 

— Identification  of  subject   687 

— Intention  of  party  688 

Parties  bound  by  the  rule    692 

— Parties  to  instrument    693 

— Obligor  and   payee    693 

— Obligor  of  negotiable  note 694 

Method  of  taking  849 

ORDER   OF    PROOF— Order   of   introduction    of    testi- 
mony      855 

ORDINANCES — City  ordinances  as  evidence   328 

ORIGINAL  ENTRIES— See  Entries. 

ORIGINAL  EVIDENCE— See  Primary  Evidence. 

OTHER  ACCIDENTS— Relevancy  of  proof  of 127 

OTHER  FIRES— Relevancy  of  evidence  of 128 

OTHER    OFFENSES— Irrelevancy   of   proof   of   discon- 
nected distinct  crime    123 

Showing    motive     125 

Showing  commission  of  offense  charged 125 

Relevancy  of  proof  of 68 

Relevant  to  show  system   147-152 

OTHER  SALES— Irrelevant   to   prove   value 130 

OWNERSHIP— Declarations  as  to  279 

Proof  by  hearsay    163 

Provable  by  opinion  evidence    404 

Presumption   as   to    736 


982  INDEX. 

OWN  WITNESS— Contradicting  or  impeaching 882 

PAIN— Exclamation   of    303 

Statements  of  past  pain   305 

PARDON — Record  of  pardon  as  evidence 317 

PARENTAGE— See  Pedigree. 

Evidence   relevant  to   prove    112 

PARENT  AND  CHILD— See  Infants. 

Admissions  of  child  binding  parent 199 

PAROL  EVIDENCE— See  Oral  Evidence. 

PARTIES— Concluded    by    judgment    375 

Who  may  make  admissions 178 

— Parties  of  record   179 

— Nominal  parties    180 

— Interested  parties    180 

—Grantors     181,  182 

— Privies     181 

— Seller  of  personalty 185 

— Ancestor    186 

— Insured    187 

— Guardian    188 

—Trustee    188 

— Executor  or  administrator  188 

—Agents     190-199 

— Principal  and  surety  200 

—Partners    201 

— Joint  adventurers  201 

— Ppersons  jointly  interested    202 

— Strangers    205 

— Persons  referred  to  206 

PARTNERSHIP — Admissions  of  partners  binding  firm. 201 
Hearsay  evidence  to  prove 163,  164 

PART  OF  SAME  TRANSACTION— Relevancy  of  facts 

forming    29 

PASS  BOOK— As  evidence    254 

PASSION— See  Emotion. 

PATENT  AMBIGUITY— Oral  evidence  to  explain 681 

PATERNITY — See  Parentage;  Pedigree. 

PAYMENT— See  Receipts. 

PEDIGREE— Declarations  as  to   282 

— Death  of  declarant    287 

— Relationship  of  declarant   287 

— Matters  asserted    290 

PHOTOGRAPH— As  evidence   109,  509 

X-Ray  sciagraphs    513 

PHYSICAL   EXAMINATION— Of  injured   person   seek- 
ing damages    526-529 

PHYSICIAN — Advising  operation  as  hearsay 165 

Declaration  inadmissible  to  prove  physical  condition. 163 


INDEX.  983 

Page 
PHYSICIAN— (Continued). 

Privileged    communications    between    physician    and 

patient    815-817 

PICTURES— See  Photographs. 

PLACE — Relevancy  of  evidence  of  facts  fixing  time  or 

place     112 

PLEADINGS— Admissions   in    174 

As  evidence   173 

Former  adudication  must  be  pleaded 369 

POLYGAMY— Other  acts  of  intercourse 66 

PLEAS— As    evidence    173 

POSSESSION — Declarations   of   persons   in   possession 

of  property S8,  90,  165 

Of  money  by  deceased  as  showing  motive 63 

Relevancy  of  evidence  to  prove  right  to 52 

POSTOFFICE— Presumption  of  delivery  of  mail  in  reg- 
ular  course    155,  157 

PREDICATE— See  Laying   Foundation. 

For  dying  declaration    243 

PREPARATION— Relevancv  of  proof  of 57,  70 

PREPONDERANCE— Denned    698 

Sufficient  to  establish  alibi   702 

PRESUMPTION— Defined    15 

Arrival  and  departure  of  train 156 

As  to   documents   offered   in   evidence 626-633 

— Ancient  deeds   631 

Delivery  of  mail    155,  157 

Innocence    705 

Legitimacy    721 

— Rebuttal    723 

Death  from  absence    725 

— Time  of  death   72;i 

Survivorship    735 

Lost  grant    731 

Regularity     733 

Ownership  and  title 7,ii; 

ellaneous  matters   737 

Relevancy  of  proof  of   65 

Threats  by  deceased   i;:i,  711 

Supporting  or  rebutting  inference  suggested  by  facta 

in  evidence  im;   1  ,,7 

d  bis  duty   

PRESUMPTIVE  EVIDENCE     Defined    "    1- 

PRIMA  FACIE  EVIDENCE—  Defined    12 

PRIMARY    EVIDENCE— Defined    13 

PRINCIPAL  AND   SURETY— Admissions    by    200 

PRIVATE  WRITINGS— See  Documentary  Evidence. 
PRIVIES— Admissions  by   181 


984  INDEX. 

Page 
PRIVILEGED  COMMUNICATIONS— 

Between  husband  and  wife  796 

— When  not  confidential   797 

— In  presence  of  third  person   798 

—By  letter  798 

— Termination  of  relation  799 

Privilege  of  judge    799 

Privilege  of  attorney   799 

Attorneys  at  witnesses 801 

Official  communications   802 

Affairs  of  state   802 

As  to  commission  of  offense 803 

Between  attorney  and  client  803 

— After  termination  of  relation 811 

— Attorney  acting  for  both  parties 811 

— Illegal  matters    812 

— Presence    of   third    person 812 

— Scrivener  or  drawer  of  will 812 

— Production  of  papers   813 

— Waiver  of  privilege  814 

— Privilege   of  client    815 

Physician  and  patient   815-817 

Priest  and   parishioner    816 

Privileged  documents  821 

PRIVILEGED  DOCUMENTS— Witness  cannot  be  com- 
pelled to  produce    821-823 

PRIVILEGE   OF  WITNESS— 

To  refuse  incriminating  testimony 823 

— Tendency  of  show  crime   827 

— Production  of  books  and  papers 827 

— Compulsory    identification     829 

— Claiming    privilege    830 

— Immunity  from  prosecution   830 

— Waiver  of  right 831 

— Determination  of  privilege   833 

PROMISES— Confession    obtained    by 219-223 

PROOF— Defined     14 

PROPERTY  RIGHT— Evidence  relevant  to  prove 52 

PUBLIC  DOCUMENTS— Statements  in   317 

QUANTUM    MERUIT— Evidence    to    prove    reasonable   - 
value  of  services   132 

QUARRELS— Relevancy  of  proof  of 65 

QUESTIONS  TO  WITNESSES— Leading  questions 865 

On  cross-examination   871 

RAILROADS — Relevancy  of  proof  of  other  accidents  or 

fires     127,128 

Rules  as  evidence   344 

Time  tables  as  evidence   344 


INDEX.  985 

Page 

RAPE— Appearance   and    condition    of   victim 95 

Complaint  of  victim  as  relevant  evidence 92 

Details   of  complaint    94 

Delay   in   making   complaint    »    95 

Condition,  appearance  and  demeanor  of  victim 95 

Evidence  of  other  acts   of  intercourse 147 

Character  of  prosecutrix  462,  917 

— Reputation   for   chastity    918 

RATIFICATION— Of  previous  statement  as  dying  dec- 
laration      239 

RATING — Mercantile  reports  as  evidence 344 

RATIONAL     PROBATIVE     VALUE— Prerequisite      to 

competency    17 

REAL  EVIDENCE— Objects  constituting  530 

REASONABLE   DOUBT— Defined    699 

State  need  not  prove  guilt  beyond 699 

Alibi  and  insanity  need  not  be  proved  beyond.  .702,  703 

REBUTTAL— Of  impeaching  testimony  916 

Rebutting  inference  suggested  by  facts  in  evidence.  .107 

RECEIPTS— As    evidence    540 

RECORDS— As    evidence    539,  591 

RE-EXAMINATION— Of    witness     864 

REFRESHING  MEMORY— Of  witness    923 

Necessity  of  failure  of  recollection  926 

Independent  recollection   92S 

Requisites  of  memoranda    928-935 

Inspection  of  memoranda   936 

REGISTERS— Official  registers  as  evidence 319 

REGULARITY— Presumption   of    733 

RELATIONSHIP— See   Pedigree. 

Relevancy    of    proof    of    66 

RELEVANCY— Defined     17,  18 

In  general    23 

Facts   bearing  on  opinions   of   experts 429 

Facts   necessary   to   explain    or    introduce    relevant 

facts     102, 105 

Facts  necessary  to  show  relevancy  of  other  facts. . .  .114 

Similar  but  unconnected  facts 115 

Of  opinion  evidence   393 

Of  acts  and  declarations  of  conspirators 42 

Of  proof  of  title  or  right  to  property 52 

Of  custom  or  habit  54 

Of  dying  declaration    329 

RELIGIOUS  BELIEF— Effect  on  dying  declaration    ...922 

REMOTE  EVIDENCE— As  irrelevant 21 

REPUTATION— See    Character. 

Inadmissible  as  hearsay   166 

RESEMBLANCE— Family    resemblances    provable    by 

opinions     406 


986  INDEX. 

Page 

RES  GESTAE— In  general    33-  41 

Defined    34 

Spontaneous    exclamations     33 

Bj^tander's    exclamation    34 

Concurrence  with  principal  transaction    35 

Statements  accompanying  acts 100 

RULE- — Placing   witness    under   rule 856 

RULES— As   evidence    344 

RUMORS— As   hearsay    166 

SALES — Admissions  by  seller  of  personalty 185 

SANITY— Opinion   evidence  to   prove    399 

SCIAGRAPHS— As  evidence    513 

SCIENCE — Judicial  notice  of  scientific  facts 494 

Scientific  books  as  evidence   281,  339 

Subject  of  expert  testimony  411 

SECONDARY  EVIDENCE— Defined    13 

Of  contents  of  writing   561-584 

SECRETS — See   Privileged   Communications. 
SEDUCTION— Evidence  of  other  acts  of  intercourse.66,  146 
SEISIN— See  Ownership. 

SEPARATE  AGREEMENT— Provable  by  parol 652 

SELF    INCRIMINATION— Privilege    of   witness    to    re- 
fuse to  give  incriminating  evidence   823-833 

SENSE     OF     IMPENDING     DEATH— Prerequisite     to 

dying  declaration  236 

SEXUAL    INTERCOURSE— See    Adultery    and    other 
sexual  offenses. 

Proof  of  parentage  by  showing 112 

SHIFTING     OF     BURDEN— In      civil     and      criminal 

cases    710,  715 

SHORTHAND  NOTES— To  prove  former  testimony. .  .313 
SIDEWALKS — Irrelevancy  of  proof  of  other  accidents 

from  defects  in    127 

SIMILAR     OCCURANCES— Relevancy    of    similar    but 

unconnected  facts    115 

SIMILAR  TRANSACTIONS— To  show  intent  or  motive.141 
SLEEP — Admissibility     of     confession     uttered     while 

sleeping    231,323 

SPONTANEOUS    EXCLAMATIONS— Relevancy    ...33,34 
STATEMENTS— See  Declarations. 

Relevancy  of  statements  made  in  presence  of  accused  80 

STATE  PAPERS— As  evidence    318 

STATE  SECRET— As  privileged  communications   802 

STATISTICS— Judicial   notice    of    491 

STATUTES— Judicial  notice  of   479 

STENOGRAPHIC  NOTES— To  prove  former  testimony.313 
STOCK  EXCHANGES— Market  reports  as  evidence.  .  .341 

STOLEN  DOCUMENTS— As  evidence   13 

STRANGERS — Admissions  or  statements  as  evidence. 205 


INDEX.  987 

Page 
SUBSEQUENT  CONDUCT— Relevancy  of  proof  of.  .  .57,  71 

SUBSEQUENT  THREATS— Effect  on  confession 225 

SUGGESTIVE  QUESTIONS— See  Leading  Questions. 

SUMMARIES— Of  contents   of  account   books 255 

SURVEYS— As    evidence    322 

SURVIVORSHIP— Presumption  of    730 

SWINDLING — Other  similar  acts    124 

SYSTEM— Relevancy  of  proof  of  facts  showing. .  .147-152 

TABLES— As  evidence    342-344 

TAXATION — Assessed  valuation  to  prove  value 133 

TECHNICAL   BOOKS— As    evidence    339 

TELEGRAPHS   AND   TELEPHONES— Presumption   of 

delivery  of  message    156 

Telegrams  as  hearsay   164 

Telephone  conversation  as  hearsay  164 

TEMPERATURE— Proof  by  records  of  weather  bureau.  112 

TESTS — And    experiments   as   evidence 135 

THIRD  DEGREE— Confession  obtained  by    225 

THREATS— Confession   obtained   by    224 

TIDE  TABLES— As  evidence    344 

TIME— Judicial  notice  of  495 

Between  making  of  dying  declaration  and  death  of 

declarant     238 

Of  making  entries  in  account  books   offered   in  evi- 
dence      255 

Relevancy  of  evidence  of  facts  fixing 112 

TIME  TABLES— As  evidence   344 

TITLE— See  Ownership. 

Hearsay  to  prove  163 

TRADE      JOURNALS— As     evidence    of    market    quo- 
tations     342 

TRADES— Judicial  notice  of   490 

TRANSACTION— Denned     29 

Relevancy  of  facts  forming  part  of  same  transaction  29 

TREATIES— Judicial   notice   of    479 

TRUSTEES— Admissions  by    188 

UNCONNECTED     FACTS- Similar     but     unconnected 

facts   irrelevant    115 

UNCONTRADICTED  STATEMENTS— As  evidence    ...    97 
UNDUE    INFLUENCE— Confession    obtained    by... 223-226 

Declarations  of  testator  showing L'71 

VALUE — Other  independent  sales  as  evidence  of 130 

Cost  as  proof  of    131 

Provable   bv   Opinion   evidence    401 

VITAL  STATISTICS— As  evidence   !336 

VOICE — Proving  identity  by  recognition   of Ill 

VOLUNTARY  CONFESSIONS— In  general    219 

Before   officers    223 

WARNING  ACCUSED— Before  taking  confession   !..!.232 


988  INDEX. 

WEIGHT  OF  EVIDENCE— Not  affecting  admissibility.   24 

WHITE  SLAVERY — Declarations  of  persons  conspiring 

to  procure  girls    47 

WILLS — Declarations  of  testator  as  to  contents  of  will. 269 
.  Declarations   of   testator   showing   existence   or  non- 
existence      273 

WITHOUT     PREJUDICE— Admissions     made     without 

prejudice     207 

WEIGHT  OF  EVIDENCE— Admissions   203 

Confessions    218 

Dying   declarations    244 

Effect  of  impeachment  on    916 

WITNESSES— Attempt  to  influence  as  evidence  of  guilt  78 

Competency  in  general    773 

— Criminal  cases   784 

— Of  person  making  dying  declaration  243 

—Of  jurors    805 

— of  grand  jurors  806 

Confidential    communications,    see     Privileged     Com- 
munications. 

Excluding  during  taking  of  testimony 856 

Incompetency    776 

— Age  of  witness   777,  781 

— Mental  disease    779 

—Deaf  mute    781 

— Religious  belief    781 

— Discretion  of  court   782 

Examination    852 

—By  court    856 

— Placing  under  rule    856 

— Recalling  witness 857 

— Person  making  dying  declaration    242 

Cross-examination    857 

—Extent    862 

Re-examination    864 

Expert  witnesses    411 

— Qualification    414 

— Examination    428 

— Hypothetical   questions    423 

Husband  and  wife  in  criminal  cases 785 

— Existence  of  legal  marriage    786 

— Marriage   after   offense    786 

— Offenses  against  each  other 787 

Husband  and  wife  in  civil  cases 790 

— When  interest  is  joint    792 

— Matters  of  agency  793 

— Sexual  offenses,  adultery 794 

Communications  between  husband  and  wife 796 

— When  confidential   797 


INDEX.  989 

Page 

— In  presence  of  third  person  798 

—By  letter  798 

— After  termination  of  relation  799 

Impeaching  and   contradicting    871,  878 

— Own    witness    882 

— Laying   foundation    885 

— Inconsistent   statements    889 

Impeaching  credit   892 

Impeaching  accused    893 

Indictment  as  impeachment   904 

Conviction  of  crime  as  impeachment 907 

Knowledge  of  impeaching  witness 910 

Number  of  witnesses    840-842 

Privileged  communications,  see  Privileged  Communi- 
cations. 

Oath  of  witness   845 

— By  whom  administered    846 

—Form   of    847 

— Waiver  of  irregularities    849 

Privilege     to     refuse     to     give     incriminating     testi- 
mony     823-833 

Refreshing  memory    923-930 

—Memoranda    928-936 

Reputation  for  truth  and  veracity   895 

Moral  character   896 

Leading  questions   865 

— On  direct  examination   867 

— Discretion  of  court   868 

Moral  character   896 

Survivor's  testimony  773 

WRONGFULLY    OBTAINED    EVIDENCE— Admissibil- 
ity and  competency  13 

X-RAY  SCIAGRAPHS— As  Evidence. 

YEAR— See  Time. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAR  2  5  1972 


Form  L9-  Series  4989 


